Wednesday, February 20, 2008

New CAAF opinion

CAAF's decision in United States v. Miergrimado, __ M.J. ___, No. 07-0436/MC (C.A.A.F. Feb. 20, 2008), is now on its web site here. Judge Erdmann for a unanimous court affirming the Navy-Marine Corps Court's decision.

Judge Erdmann's opinion explains that "Miergrimado was charged with attempted premeditated murder. At trial, defense counsel intended to use an 'all or nothing' strategy based on a theory of self-defense."

CAAF "granted review to consider whether the military judge committed error by instructing the members on the lesser included offense of attempted voluntary manslaughter over the defense objection." By the time the case reached CAAF, the accused's legal argument had morphed somewhat. In his CAAF brief, "Miergrimado argued that the lesser included offense instruction was given in error because there is no factual element in dispute that would distinguish the greater offense of attempted premeditated murder from the lesser offense of attempted voluntary manslaughter." And, CAAF tells us, "[a]t oral argument Miergrimado changed course again." Fans of Bill James know that he has a bizarre hatred for twice-baked potatoes. Courts have a somewhat more understandable hatred of twice-morphed legal arguments.

CAAF rejected all three versions of the defense argument. CAAF reasoned that "consistent with the standard set out in Sansone v. United States, 380 U.S. 343, 350 (1965), this court has long recognized that a military judge can only instruct on a lesser included offense where the greater offense requires the members to find a disputed factual element which is not required for conviction of the lesser violation."

Applying Sansone, CAAF considered "whether there is a disputed factual element that distinguishes the greater offense of attempted premeditated murder from the lesser offense of attempted voluntary manslaughter." The court concluded that "premeditation is a distinguishing factual element."


Phil Cave said...

I would like to have seen the court reinforce the ability to go "all or nothing," which seems to be supported by United States v. Strachan, 35 M.J. 362, 364 (C.M.A. 1992)(and other earlier cases).
But for appellate advocates the lesson is maybe not to shift horses mid-stream.

John O'Connor said...

If an accused were permitted to go all or nothing over government objection, yuo would start seeking charge sheets as long as your arm so that the TC can explicitly charge every possible LIO.

I would have been shocked if CAAF had said that the accused has all the cards to play when it comes to LIOs.

ag said...

Perhaps Strachan's "choose your poison" affirmative waiver is too much in tension with a judicial sua sponte duty to instruct on LIOs where elements are contested.

It does force both sides to think through introducing evidence and testimony. I like that better than "my lawyer gambled wrong" IAC appeals -- and my bet is we see more cases defining parameters of instructing on LIOs this term.

Phil Cave said...

I don't disagree with the thinking here -- it is a risky strategy. And I certainly am (and would encourage others to be) very wary of all or nothing situations. When you do this, it's necessary to fully inform the client in advance and to get his/her written acknowlegement and assent (and on the record perhaps), to lessen the IAC likelihood.

My own experience on this comes from a case I did some years ago at trial and on appeal. United States v. Duncan, 36 M.J. 668.