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Tuesday, March 31, 2009
ACCA sets aside rape conviction due to factual insufficiency
Here's something one doesn't often see -- yesterday, in an unpublished opinion, ACCA set aside a rape conviction due the evidence's factual insufficiency. United States v. House, No. ARMY 20061064 (A. Ct. Crim. App. March 30, 2009). ACCA affirmed an adultery conviction arising from the same incident and authorized a rehearing on the sentence.
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23 comments:
Show of hands---how many folks here had one of these every six months?
Question two--on a scale from 1 to 10, with 1 being no way and 10 being for absolute sure--is the chance of Lt AB being charged a negative number?
NMCCA issued an order in Neal upholding the constitutionality of Art 120 yesterday.
Two thoughts-- (1) I wonder if anyone involved in this episode answered in any forum to charges of fraternization; and (2) a bit much on the graphic sexual detail.
Question for my Army brethren:
Even accepting that 2ndLt's are de facto liberty risks, is the conduct described in this opinion accepted conduct for Army junior officers?
I'm not referring to the sexual escapades, but the preceding night of carousing and drinking between Lieutenants and Sergeants.
I'm just wondering if that is as out of line as I think it is, or, if in Army culture, it would be OK for Lieutenants and Sergeants to hit the town together like this.
Because if it is not, then that is a lot of 2ndLt's demonstrating very poor judgment.
If the carousing is legitimate "team building" then the 2LT could have dinner and a few drinks with enlisted personnel. In a TDY situation it is not unusual or generally improper for Officers and NCO's to have dinner and a few drinks.
However, the facts of this case seem to show that the
2LT was in clear violation of one or all of the subsection in AR 600-20, Chapter 4-14(b).
Why would any prosecutor take this case to court? It's clear no proof analysis was done for this case.
I was Assistant DC on the case. The 2LT was not charged. There were other facts that did not make their way into the opinion that I'm not at liberty to discuss.
Needless to say, having sat through the trial and been involved in the case fairly substantially, I think this is the right result.
Besides the facts, ACCA could have overturned this case on instructions or panel selection. I'm certainly happier with this result because I wouldn't want to come back on active duty to re-try it.
As to why it went to trial, SETAF is a pretty hard core jurisdiction. They're sort of a mini-Fort Bragg and had a very hard line stance on justice.
It is always easier to read legal opinions that are basically soft-core porn...it beats a dry analysis of an exotic point on the correct statutory interperation of a law.
A famous quote from the movie "A Thin Blue Line" is:
Any prosecutor can convict a guilty man. But it takes a great prosecutor to convict an innocent man.
These prosecutors took that one bit further: They convicted a man in a case that the apeals court found that no rational jury would have had enough evidence to convicted!
But, at least the prosecutors have the response: "Well one jury thought there was enough evidence!"
I'm not sure what response the trial defense team has....But I think they probably should be looking at getting into a different line of work!!
Rob - what was the "instructional error?" And, were there Enlisted on the panel?
My guess is that they were either- newly mobilized reservists, reservists on AT, or national guard. No way any of these Bozos were active duty. What say you Rob?
I personally know ADC on the case. ADC is one of the best TDS attorneys around, highly respected by MJ's, SJA's and the defense bar. This result is an anomaly and had nothing to do with his "performance" on the case. In fact one could say it was the DC/ADC that made the record compelling enough for ACCA to flip the rape charge. A weaker DC/ADC would not have developed the testimony during cross examination/direct examination for ACCA to reverse the findings on appeal.
"...ADC is one of the best TDS attorneys around, highly respected by MJ's, SJA's...."
Huh? If you're doing your job as a DC, most SJA's are going to hate you because your job is to expose their dirty linen!
MJ's only like you when you don't bring motions and get your client through the Care inquiry without incident and a Stip to boot!
Who said like? Word used was respect. Respect and like are two very different concepts.
Your lack of attention to detail tells me you must be a TC or a former TC.
Not to most SJA's, sorry. And, while I once was a TC, I have since defended more than 250+ courts-martial.
And I'm not talking about "civility" here - I'm talking about attacking the government and "its case" from every conceivable angle. I was not making an ad hominem attack on the ADC who second-chaired the case.
250+ courts-martial. Hmmm, obviously not on AD. Not for a very long time.
That answers a lot of the follow-up questions I had.
Thanks.
Soft core porn indeed...
except, this accused apparently did not have much staying power. 5-10 seconds?!???!
Makes me feel like a champion!
I didn't mean any offense to the defense team. Getting a reversal on appeal is a great victory...I was just trying to be funny.
As for the Anon with the "250+" courts? Ya right! Unlikely in the military, with the relatively short tours that most people have.
I doubt you are even a lawyer. I've never heard a lawyer have such an immature attitude that you express.
For examples:
(If you're doing your job as a DC, most SJA's are going to hate you because your job is to expose their dirty linen!....MJ's only like you when you don't bring motions and get your client through the Care inquiry without incident and a Stip to boot!)
Wow. Serves me right for posting under my own name. And for bothering to post at all . . .
Thanks to the anonymous poster who came to my defense.
This was a hard core Airborne infantry style panel. They were all active duty, if memory serves. It was mixed officers and enlisted.
I could speculate on their reasoning, but I really can't offer anything else without violating my oath. I would note that they only sentenced him to a year imprisonment, so I would guess there were some lingering doubts.
I can't say enough about how happy I am for Sergeant House.
Regarding the instructional error (or my opinion of instructional error which ACCA found to be without merit), the fraud in the factum instruction was hand crafted by the government and the judge modified it heavily to the point where I thought it was ambiguous and confusing. ACCA thought differently, I guess.
Mr. Smalls:
A long time ago there was a war called Vietnam - that and the "times" produced a lot of courts-martial. If you were a JAG and weren't trying/defending 3-4 cases a month, you were a slacker. As a DC, it was not unusual to have clients with a couple of Summary court convictions or even 2 Non-BCD specials before they hit the "big time" and got a BCD Special. Have you ever tried a Non-BCD Special?
There were many people who had 100 courts in their 4 year stint. I spent 5 years on AD and had 112, which included 1 tour as DC and 1 as SDC in Korea. In the 5 years after I left AD, I did nothing but courts-martial all over Europe, which got me to the 200 mark. During the 1st Gulf War, I was activated from my IMA position to serve as a GCM/TC for about 10 months.
Since my private practice is 95% military defense and has been for years, in the 33 years that I've been practicing military law, 250+ courts-martial is not an astounding number. I stopped counting years ago.
I guess you're entitled to your opinion, but that's about all.
Too bad age and maturity do not always correlate positively.
Anon 510,
When you say "courts" do you mean contested cases or guilty pleas?
Because if you are including guilty pleas, I am thoroughly unimpressed. At least as of a few years ago, the big boys at a Marine LSSS could be expected to take at least 80-90 cases to court-martial per year.
So from where I sit, I'd say that you were a slacker if you were doing any less than 8 courts-martial per month.
Sheer number of CM's is a meaningless statistic. It's the quality of representation provided at those CM's. Doing a crappy job on 500 CM's means nothing. Doing outstanding work on 25 CM's is much more meaningful.
My docket's bigger than your docket...
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