CAAF issues instructional error opinion

CAAF released its opinion today in United States v. DiPaola, __ M.J. ___, No. 08-0200/NA (C.A.A.F. Dec. 18, 2008). The opinion is available here. By a 4-1 vote, the court held that the military judge erred by not giving a reasonable and honest mistake of fact instruction in an indecent assault case. The majority also held that the error was not harmless beyond a reasonable doubt. Judge Erdmann wrote for the majority. Judge Stucky dissented. The court reversed NMCCA's decision, which had held that the military judge didn't abuse his discretion by failing to give the instruction.

As was the case in United States v. Crudup, __ M.J. ___, No. 08-0392/AR (C.A.A.F. Dec. 4, 2008), which we discussed here, the differences between the majority and the dissent don't appear to involve any questions of law or doctrine. Rather, the different preferred outcomes appear to be related to the judges' views of the facts of this particular case.