Wednesday, February 20, 2008

Attempted drunk on duty?

I suspect that many of you sometimes find yourself lamenting that there just isn't sufficient precedent addressing the offense of attempted drunk on duty. Well CAAF is getting ready to help plug that jurisprudential hole. Here are the two issues that CAAF granted on Friday:

WHETHER THE SPECIFICATION UNDER THE ADDITIONAL CHARGE STATES AN OFFENSE FOR ATTEMPTED DRUNK ON DUTY IN VIOLATION OF ARTICLE 80, UNIFORM CODE OF MILITARY JUSTICE (UCMJ).

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUSTAIN A FINDING OF GUILTY TO THE SPECIFICATION UNDER THE ADDITIONAL CHARGE - ATTEMPTED DRUNK ON DUTY IN VIOLATION OF ARTICLE 80, UNIFORM CODE OF MILITARY JUSTICE (UCMJ).

United States v. Snyder, __ M.J. ___, No. 07-0765/NA (C.A.A.F. Feb. 15, 2008). NMCCA's opinion, which sheds a miniscule amount of additional light on the issues, can be found here. United States v. Snyder, No. 200602367 (N-M. Ct. Crim. App. June 7, 2007).

Of course, the most perplexing question about this case is why anyone would charge a Sailor with attempting to be intoxicated on duty. (The intoxication involved methamphetamine use, not alcohol.)

8 comments:

Anonymous said...

Doesn't drunk involve alcohol as opposed to drugs? Why not try attempted dereliction of duty or the ever popular conduct prejudicial to good order and discipline (but is that an LIO of attempted drunk on duty after Medina?).

Phil Cave said...

Why not sift through the facts, decide on what is the core misconduct, consider what might be admissible under 1001, consider judicial economy (trial and appellate), and forgo an attempted drunk charge. What value added effect was the attempt charge to the case? Then we don't have to spend time deciding whether it may be charged another way, such as dereliction.

Anonymous said...

This is a wonderful example of the hypocrisy of the "strict construction" school. This group purportedly believes in interpreting words according to their original meaning. Hence, "drunk" means what everybody understands it to mean - impaired by alcohol. And a good thing, too, because the symptoms of drunkeness are NOT the same as the symptoms of other drugs.

But, law-and-order types will put these lofty considerations aside and allow words and meanings to "evolve" when it fits their purposes. So now drunk simply means "intoxicated." (The same result I get from watching an Obama speech. So I better not stand duty during one of his barnburners.)

I also love the NMCCA's Olympian statement of virtue: we will not put form over substance. When has this principle ever been applied in favor of an accused? Anybody have a citation like this?

Bill Cassara said...

I attempted to get drunk once. Missed my mouth.

45alum said...

It's too bad that no one has kept score on the number of CAAF grants arising out of Judge Geiser opinions.

Because I've got a feeling that the number would be quite embarassing.

Just more evidence that the Navy JAG's "military justice track" can not get here soon enough.

Anonymous said...

Isn't Judge Geiser the one who once wrote in an opinion that in the civilian world the defense attorney would be sanctioned?

Well, lets not get ad hominem (but what goes around, comes around).

My serious inquiry to CAAFlog is this: What service court has the highest rate of grants (proportional to case volume)? Is it about equal...or do NMCCA decisions usually win the Darwin award?

Phil Cave said...

45Alum,

I assume you are including the trial counsel and a fairly senior SJA who came up with this creation.

To reiterate my earlier comment. It seems to me the drug use and distribution is the serious core misconduct. If the evidence is correct, and the use was just prior to assuming watch with a weapon, then that ought to be admissible under 1001 as facts and circumstances surrounding the offense.
All too often we see "safety" argued as a reason to suppress illegal (as opposed to legal) drug use, with little nexus between the use and potential safety problems. In this case there seems to be a very clear and obvious nexus rather than speculation. Thus justifying admission of the aggravating evidence under 1001.

Anonymous said...

Phil,
You're analysis is right on. A good prosecutor and a good SJA protects his/her client by playing the center of the fairway. Tenous and unnecessary charges and/or arguments on behalf of the Government is bad lawyering, plain and simple.

I can't figure out if the prosecutor and SJA accidentally stumbled into this charge or if they thought they were being clever. But I still can't believe that Judge Geiser issued this opinion with a straight face as if nothing questionable was happening. Instead, we get this sterile opinion as if spit out by a 1950 Univac. He had an independent Art 66 duty - that he both 'attempted' to - and did - fail at. The opinion is an embarrasment.