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Tuesday, December 02, 2008
Audio of today's CAAF oral arguments available
CAAF has already posted the audio of today's two oral arguments on its web site. Here's a link to the oral argument in United States v. Brown, No. 08-0261/AR, and here's a link to the oral argument in United States v. McCracken, No. 08-0440/MC.
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3 comments:
Did government counsel in McCracken really throw his co-counsel under the bus like it appeared? Ouch.
It has already been discussed regarding the recording of oral arguments at the CCAs. I know that the NMCCA does not record, but if anyone had the opportunity to hear the oral argument in the government appeal concerning the new Art. 120, I would sure like to hear (or read) about it.
The oral argument went long and many issues were discussed. Both counsel were well-prepared and handled the judge's questions exceptionally well.
The Govt did not spend too much time on whether the MJ's ruling was premature as no evidence had been received in the case so far. If they wanted to stress that part of their argument, the judges did not let them and instead focused on the statute and its potential problems. The Government did concede that a couple portions of the statute should be disregarded as a "legal nullity." One of these was the statutorily created opportunity for the Govt to disprove the affirmative defense once the accused has proved it by a preponderance of the evidence. The Government also stated that the court could find everything past 120 (M) unconstitutional and the Govt could still move forward as what would be left would essentially be 18 USC 2241-2247.
The defense did acknowledge that their challenge was not a facial challenge, but and "as applied" challenge.
The issue seems to rest on whether the MJ acted prematurely and if not whether the stated affirmative defense (because it appears to logically similar to one element of the offense (counsel characterized it as the flip side of the element) would require the accused to actually place some evidence before the fact-finder that assists the government in its effort to prove the element when he raises that defense.
That is the best I can do from memory. I think regardless of the CCA result, you will get to hear the oral argument at CAAF.
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