Friday, September 26, 2008

CAAF grants review of 2 Navy cases

CAAF granted review of two Navy cases on Wednesday. Here's the issue in one:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY EXCLUDING, PURSUANT TO M.R.E. 403, RELEVANT EVIDENCE OF A PRIOR HOMOSEXUAL RELATIONSHIP BETWEEN APPELLANT AND A CENTRAL GOVERNMENT WITNESS OFFERED BY THE DEFENSE TO SHOW BIAS AND MOTIVE TO MISREPRESENT ON THE PART OF THE GOVERNMENT WITNESS.

United States v. Collier, __ M.J. ___, No. 08-0495/NA (C.A.A.F. Sept. 24, 2008). NMCCA's unpublished opinion in the case is available here.

The other newly granted Navy case presents these issues:

I. WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN FAILING TO SUPPRESS APPELLANT'S STATEMENT TO CIVILIAN AUTHORITIES AS INVOLUNTARY.

II. WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO AFFIRM APPELLANT'S CONVICTION.

United States v. Chatfield, __ M.J. ___, No. 08-0615/NA (C.A.A.F. Sept. 24, 2008). NMCCA's unpublished opinion in this case is available here.

5 comments:

No Man said...

Maybe I am just becoming a defense hack or something, but isn;t the rationale of NMCCA backwards? the charged nature and stigma that homosexual relationships have weighs in favor of admitting the evidence, not against, no? Isn;t the whole issue that the reason for the bias was to cover up what is still today a criminal offense in the military? If the crime was anything else wouldn't the judge admit it? For example, say that the two were friends and had committed a larceny of the auto variety together, I doubt the questionning would end at: So you were REALLY close friends and you liked to drive cars together? And if the evidence was reversed, wouldn't NMCCA be saying that the issue goes to the credibility of the accused (if he testified) and admitting it against him? Mayne not, I guess I am starting to think like a hack. I think I'll go enter a 45 step plan.

Anonymous said...

CAAF seems to be particularly interested in the Navy this early in the term...I guess Code 46 gets the "denedo-bounce." Hell hath no furry like CAAF scorned.

Anonymous said...

Hack or not, I agree with No Man. As Judge Effron, dissenting, noted in a similar vein:

"In the armed forces, homosexuality is different from any other form of sexual activity. There is no requirement to discharge servicemembers who engage in adultery, heterosexual sodomy, fraternization, sexual harassment, or child abuse. A person who engages in homosexual conduct, however, is subject to mandatory discharge, with very limited exceptions. 10 USC § 654(b). Congress, in enacting this mandatory discharge requirement, specifically found that '[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.' Id. at § 654(a)(15)." U.S. v. Phillips, 52 M.J. 268

Under the existing law, I'd find it difficult to think of any better bias/motive to lie. As a trial counsel, I know I'd certainly much prefer a victim who hadn't already been branded by the government, de jure, as someone who is "unacceptable", "risky",
"disordered", "undisciplined", etc., even before he/she took the stand.

Face it, in the context of "don't ask, don't tell", no victim of a same-sex sexual offense should reasonably expect any protection under MRE 403/412. If you don't like it, talk to Congress or the President.

Dew_Process said...

Collier is a no-brainer. Had the MJ allowed this evidence in, a rational court-member may have not believed her, which in turn would have jeopardized a conviction. Thus, under the deferential Black Robe concept of "Thou Shalt Not Have Acquittals," the evidence had to be barred "just in case."

MEMO TO DEFENSE COUNSEL: You need to make more than an averment. An Affidavit - here, providing the factual foundation for the homosexuality claim - builds a better record. And, if the source of your information is "privileged," use the government's tried and tested "confidential informant" language to ID your source. The attorney work-product privilege is just as strong as the "informant" privilege!

Anonymous said...

As the losing civilian counsel in the Phillips case that is the source of the Effron dissent, I am quite interested to see the court revisiting the issue. Perhaps the easy solution might be to not treat same-sex sexual activity as different in the armed forces and address an inclusive analysis of misconduct to eliminate the negative power of the mere evidence of "homosexual" relationships. I will be most waiting for this decision. Thoughts CAAFlog?