Tuesday, March 24, 2009

Another Code 46 request for more time to seek certification

On 25 November 2008, in United States v. Bradley, NMCCA set aside the findings to assault with a means likely to cause grievous bodily harm and reckless endangerment by discharging a firearm, as well as the sentence, due to the accused's misunderstanding of the effect of his guilty plea. United States v. Bradley, No. NMCCA 200501089 (N-M. Ct. Crim. App. Nov. 25, 2008). The court concluded that neither Seaman Bradley nor his counsel understood his plea of guilty waived "his right to appeal the military judge's denial of his motion to remove the trial counsel from his case due to a violation of Kastigar v. United States, 406 U.S. 441 (1972)."

As the government does so often when it loses on appeal, Code 46 sought reconsideration. The panel denied reconsideration on 9 March.

Now Code 46 has asked CAAF to extend the time for the Judge Advocate General of the Navy to certify the case. United States v. Bradley, __ M.J. ___, No. 09-5002/NA (C.A.A.F. March 20, 2009).


Sheldon Smalls said...

Interesting case to read…It looks like it was amateur night in the Navy on this one.

Trial Counsel was totally clueless on any Kastigar issues: “We agree with the military judge’s essential findings of fact that the Government had made no attempt to construct a “Chinese wall,” or in any way separate the prosecutors from being exposed to the appellant’s immunized statements. Furthermore, it is also evident from the record that the trial counsel were deeply involved in the investigation and prosecution of the charges against the co-actors, to include interviewing the appellant prior to his trial.”

DC seemed pretty ineffective to if he didn’t know what issues are appealable with an “unconditional” guilty plea. And the MJ wasn’t much better: “Indeed, the military judge seemed uncertain as to which issues he believed were preserved for appeal”

I’m all for amateur night at the local strip club, but for a serious case like this the Navy needs to use it’s First String JAG’s. Let the TC do the one-time urinalysis cases for a while!

Anonymous said...


Thank goodness that it was not amateur night at NMCCA for this "serious case."