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This week at CAAF: CAAF will hear two oral arguments on Tuesday. The first is in United States v. Riddle, No. 08-0739/AR. The issue in Riddle is "WHETHER APPELLANT'S PLEAS TO ALL CHARGES AND SPECIFICATIONS WERE IMPROVIDENT BECAUSE THE MILITARY JUDGE DID NOT EXPLAIN OR DISCUSS THE DEFENSE OF LACK OF MENTAL RESPONSIBILITY, DID NOT SATISFY HIMSELF THAT COUNSEL HAD EVALUATED THE VIABILITY OF THE DEFENSE, AND DID NOT ELICIT FACTS FROM APPELLANT THAT NEGATED THE DEFENSE." I notice that counsel for the Appellant is listed as William M. Fischbach, III, Esq. I assume this is the same person as MAJ Fischbach. Did he recently leave the Army? If so, where is he now?
The second case to be argued on Tuesday is in United States v. Ranney, No. 08-0596/AF. The issues in Ranney are:
I. WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE FINDING OF GUILTY FOR DISOBEYING A LAWFUL COMMAND WHERE THERE WAS NO EVIDENCE THAT THE COMMAND WAS DIRECTED PERSONALLY TO APPELLANT OR THAT APPELLANT KNEW IT WAS FROM A SUPERIOR COMMISSIONED OFFICER.This week at the CCAs: On Wednesday, ACCA will hear oral argument in United States v. Johnson, No. ARMY 20070961. The issue is "WHETHER THE MILITARY JUDGE ERRED BY NOT INFORMING THE PANEL THAT THEY WERE TO MAKE A DETERMINATION THAT THE IMAGES ALLEGED INVOLVED REAL CHILDREN AND NOT VIRTUAL CHILDREN, AND THAT IF THEY FOUND THAT THE CHILDREN WERE VIRTUAL, THEY MUST ENTER A FINDING OF NOT GUILTY."
II. WHETHER THE ORDER IN THE SPECIFICATION OF CHARGE II WAS LAWFUL ORDER WHEN THE EVIDENCE INDICATED THE ORDER'S PURPOSE WAS TO ACCOMPLISH SOME PRIVATE END.
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6 comments:
The same.
Apparently NMCCA is having an oral argument this week. I copied this from their web page:
Wednesday, February 11, 2009
1400
United States v. Craig
The appellant was convicted, pursuant to his pleas, of one specification each of receipt, possession and distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) and (a)(5), as assimilated under Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The charges arose out of the appellant allegedly having received images and videos of child pornography through file sharing software, which he configured to allow others to access on his computer. There were no facts disclosed during the providency inquiry that anyone received images from the appellant’s computer. The issues to be argued before the court are:
I. WHETHER THE APPELLANT’S GUILTY PLEA TO DISTRIBUTION OF CHILD PORNOGRAPHY WAS IMPROVIDENT, AS THERE WAS NO EVIDENCE THAT APPELLANT DELIVERED ANY UNLAWFUL IMAGES TO ANYONE?
II. WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE DID NOT DECLARE SUA SPONTE THAT THE OFFENSES OF RECEIVING AND POSSESSING CHILD PORNOGRAPHY WERE MULTIPLICIOUS?
In a footnote the court indicated that counsel should be prepared to argue how, if at all, the decision of the Court of Appeals for the Armed Forces decision in United States v. Kuemmerle, __ M.J. __, No. 08-0448 (C.A.A.F. Jan. 8, 2009) impacts the first assignment of error.
Why does the Court use "allegedly"?
appellant allegedly having received images and videos of child pornography
The appellant was convicted of this offense. It may be overturned on appela but he is no longer alleged to have done this.
Maybe it is because they have the unique ability to conduct factual sufficiency review, thus, they could possibly "acquit" appellant on appeal if they are not satisfied of the apellant's proof beyond a reasonable doubt.
BTW, that raises a question that I should know the answer, but have not every pondered it: Would the panel need to be unanimous is a death penalty case (even when factual sufficency is not raised as an AOE (but they must conduct factual suff anway))?
With that reasoning and the state of the law as it is (until SCOTUS gives word on Denedo) everyone can claim the title, "Alleged Criminal."
No, CAAF can only review legal errors and has no authority to acquit on the facts. It is one of those extra protections that military personnel get that nobody seems to talk about much. I guess it only makes good print when we talk about how military members are getting the shaft, not when they have it better than the civilians, like Art. 32 vice grand juries.
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