Tuesday, May 13, 2008

A remand in a long-simmering case

On Pearl Harbor Day 2006, NMCCA affirmed most of the findings and all of the sentence in an unpublished decision in United States v. Mullins, No. NMCCA 200200988 (N-M. Ct. Crim. App. Dec. 7, 2006). Then-Senior Judge Wagner wrote for the court. The case was a combination of both of the twin scourges of the military justice system: child sexual abuse and child pornography.

In the course of NMCCA's opinion, it rejected an argument that a "child sexual abuse expert" gave inadmissible "human lie detector" testimony. NMCCA concluded that the issue had been forfeited. The court also noted that Judge Wities had immediately recognized the problem and provided a limiting instruction without any objection or request for additional instructions from the defense. Finally, NMCCA held that the testimony did not constitute plain error. (The Super Muppet of Appellate Advocacy was one of the appellate defense counsel before NMCCA.)

On 13 February, CAAF granted review of two issues in the case: one asking whether NMCCA "erred in holding that there was nothing impermissible in the military judge allowing the Government to introduce lie detector testimony in violation of Military Rule of Evidence 702," and the other concerning post-trial delay. (The trial ended on 6 April 2001.)

On Friday, CAAF summarily set aside NMCCA's opinion and remanded the case for a new Article 66(c) review "to include" (but apparently not limited to) "consideration of the first granted issue in light of [United States v. Brooks, 64 M.J. 325 (C.A.A.F. 2007)]." United States v. Mullins, __ M.J. ___, No. 07-0401/NA (C.A.A.F. May 9, 2007). Brooks was another human lie detector/child sexual abuse case issued after NMCCA decided Mullins.

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