Sunday, September 07, 2008

CAAF remands case to NMCCA to relook at the military judge preventing the acccused from accessing the evidence during the Care inquiry

Airman Apprentice Jones was having some trouble making it through a providence inquiry into child pornography offenses. After the military judge granted an overnight recess, the defense counsel asked the military judge to allow Airman Apprentice Jones to review the items to assist him in the Care inquiry. The military judge declined and NMCCA emphatically rejected a challenge based on that ruling. United States v. Jones, No. NMCCA 200602320 (N-M. Ct. Crim. App. Dec. 12, 2007) (per curiam). NMCCA wrote:

The only issue raised in this otherwise uneventful guilty plea was whether or not, in the middle of the providence inquiry, the appellant should have been allowed to again view the contraband child pornography he illegally downloaded in order to refresh his recollection of its specific contents. The military judge did not abuse his discretion in denying the appellant additional access to this contraband as it was far from clear at the time that the appellant was unable to recall its contents. Indeed, after the overnight recess was granted to allow the appellant to regain his composure and refresh his recollection with the assistance of his defense counsel, he was fully capable of articulating the content of both the photographs and the movie serving as the basis for his pleas of guilty. His responses fully satisfied the military judge that the factual basis for his pleas was sufficient.
Id., slip op. at 5-6.

Despite the vehemence of NMCCA's opinion -- which noted at the outset that the court "strongly disagree[s]" with the appellant's challenge -- CAAF doesn't seem to be so sure.

In an order issued Thursday, CAAF set aside NMCCA's opinion and remanded the case to NMCCA for further consideration of "WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED GUILTY AND WHETHER, IN LIGHT OF THAT DENIAL, APPELLANT'S PLEA WAS PROVIDENT." United States v. Jones, __ M.J. ___, No. 08-0335/NA (C.A.A.F. Sept. 4, 2008).

2 comments:

No Man said...

I think I might have to go with NMCCA on this one because of the type of evidence at issue. The equivalent in a drug case would be allowing the accused to go snort a few lines of the illegal substance to make sure it was really cocaine. While the parallel is not perfect, I just don't think it is unreasonable to prevent the accused from doing this. When I was a TC, DOJ had issues with prosecutors even copying images of child pornography and providing them to the defense, for exactly this sort of reason. While it seems to present an interesting appellate issue, I'd have to say this was not an unreasonable call by the MJ.

Anonymous said...

Why is CAAF sending this back to CCA? It seems like CCA looked at this issue the 1st time around, why doesn't CAAF just hear it now?