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Tuesday, September 23, 2008
Military judge denies government's reconsideration motion challenging Article 120 ruling
Back on 15 August, we discussed Judge Beal's ruling in a Navy court-martial holding that Article 120's burden-shifting provisions are unconstitutional. Today, Judge Beal issued an order denying the government's reconsideration request in the case, United States v. Fairley. We've posted that ruling here.
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7 comments:
Seems Judge Beal is batting .500 as he was just over turned on a 62 appeal.
I heard the MJ in Pensacola also recently dismissed a 120 charge using the same reasoning. That decision apparently came right before the member's were to deliberate - why wait that long to decide?
The MJ's rationale was the issue of consent was not ripe until there was evidence offered at trial raising the need to instruct on consent. The DC called the accused as a witness, but prior to doing so told the MJ that but for his refusal to rule on the motion to dismiss, she would not have called the accused. I have a copy of the MJ's initial ruling where he attempts to explain he why couldn't rule on the issue as an interlocutary matter, if someone tells me where to e-mail the file I'll send it to you. Seems like a waste of everyone's time to have gone the route he did. Question -- given that the motion to dismiss was granted after evidence was taken, does jeopardy attach?
Was the accused's testimony dispositive? If so, didn't the DC put this evidence in when making the motion pre-trial? Any idea what changed during trial itself?
No. Apparently DC don't need evidence in Pensacola.
Army Case coming fast. Trial Defense Counsel filed a writ at ACCA appealing trial judge's denial of motion to dismiss.
Judge Beal granted another motion to dismiss at Beaufort on Friday, the gov't has already filed a notice of appeal.
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