New published NMCCA opinion

NMCCA issued a new opinion today. United States v. Morrison, __ M.J. ___, No. NMCCA 200700647 (N-M. Ct. Crim. App. Mar. 6, 2008). It isn't yet on NMCCA's web site, so I've posted it on CAAFlog.com.

In Morrison, Senior Judge Geiser writes for a unanimous panel upholding the results of Midshipman Morrison's court-martial. Morrison was a heavily publicized court-martial alleging an indecent assault by a member of the United States Naval Academy's football team.

The court first rejects a court-stacking UCI issue. While two of the original 15 members were O-3s, they were bounced for cause (along with three O-6s, four O-5s, and two O-4s). Excluding those two O-2s, the remaining 13 original members and every one of the 15 subsequently detailed member was an O-6, O-5, or O-4. The defense counsel expressed concerns about the relative seniority of the panel, opining that when he went to the Academy, half the officers there were O-3s and below. But he didn't make a motion challenging the member selection.

NMCCA ruled that as to whether actual UCI existed, it would presume "that the CA acted in good faith and applied the Article 25(d) criteria conscientiously." Morrison, slip op. at 4. NMCCA ruled that the defense had presented no evidence either at trial or on appeal that the CA attempted to stack the court.

The court then assessed whether it was "convinced beyond a reasonable doubt that a reasonable person with knowledge of the relevant facts would not perceive that the deck was unfairly stacked against this appellant." Id., slip op. at 5. The court noted that this was a highly publicized case in which 23 of 30 members were challenged off the panel, thus "suggest[ing] the case's high visibility within the relatively small and insular Annapolis Navy community." Id., slip op. at 6.

While NMCCA noted that this high visibility required that the case be closely scrutizined, it survived that scrutiny. The court observed that the CA had, in fact, detailed two O-3s to the original panel -- thus indicating that the CA did not purposefully exclude O-3s from the member pool. The court also observed that the members were extensively voir dired over three days. The court also reasoned that because the members found Midshipman Morrison not guilty of one of the two alleged sexual assaults, they would not appear to have been "'stacked' to obtain a specific result." Id., slip op. at 7. The court concluded that a reasonable observer would not perceive unlawful command influence.

NMCCA also rejected a legal and factual sufficiency challenge to the findings.