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:
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.
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?
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