Friday, May 08, 2009

ACCA's Anderson decisions

Yesterday we mentioned CAAF's interesting grant of review in United States v. Anderson, No. 08-0344/AR:

WAS APPELLANT AFFORDED A FAIR TRIAL EVEN THOUGH HIS REQUEST FOR A FORENSIC PSYCHIATRIST WAS DENIED AND THE GOVERNMENT THEREAFTER AVAILED ITSELF OF A FORENSIC PSYCHIATRIST AND ATTACKED THE QUALIFICATIONS OF THE VERY EXPERT IT DID MAKE AVAILABLE TO THE DEFENSE?
We have now acquired ACCA's opinion in the case, as well as its order denying reconsideration en banc. Here's a copy of the decision. United States v. Anderson, No. ARMY 20040897 (A. Ct. Crim. App. Jan. 31, 2008). And here's a copy of the order denying reconsideration en banc. United States v. Anderson, No. ARMY 20040897 (A. Ct. Crim. App. Feb. 12, 2008) (order).

14 comments:

Anonymous said...

Along this issue, the Navy and Marine Court just posted a case bouncing a conviction because the accused was not provided the requested expert. Not sure if the link will work, but here it is:

http://www.jag.navy.mil/NMCCA/Delgado,%20J.A.%20200800346%20unpub.doc

Bridget said...

Here's a radical proposition for the Cox Commission: Stop making defense counsel beg opposing (trial)counsel for experts.

M. T. Hall said...

The line "Sure, we're happy to comply with Article 46" is right up there with "the check's in the mail" and "Of course I'll love you in the morning."

Anonymous said...

This doesn't fall entirely at the TC's feet. The MJ is supposed to keep things reasonable - which in turn conditions the Government response to defense requests. If our MJ's are systemically failing -then maybe the Cox commission should take a hard look at what qualifications we require of our jurists instead?

Anonymous said...

Bridget,

That is a very pro-prosecution position. In my opinion it's to the defense benefit that the CA has the duty to provide the defendant an expert. The CA and the servicing legal office do their best to avoid making this an issue so they really do provide good experts on average. Its just a new trial counsel who didn't get the memo.

If you disagree with that statement, I suggest a comparison with how much the typical state public defender's office pays for any expert for a trial that is not a capital case?

In the civilian world they just want to have enough money to pay their public defenders, let alone arguing that that they can't pay civilian experts.

Bridget said...

Another benefit of the expert via TC/CA is negotiation on the cost of trial as a reason for a good PTA. Still, the experience of having to battle for experts with prosecution is, shall I say, memorable. It may be that only inexperienced TC would make it difficult, but I must agree with Ms. Hall's comments, except that love in the morning is more likely.

Anonymous said...

Is this really the opinion or is this the wrong link? It looks like a paragraph. Please tell me there's more.

Dwight Sullivan said...

Anon 1727 -- that's the whole opinion. BTW, the appellant was sentenced to confinement for life.

Anonymous said...

Standard Army Court- no substance to argue with. Or for CAAF to defer to either.

Anonymous said...

Was this a guilty plea? Did the expert testify in sentencing? Anyone have any idea of the facts -- other than the Army Court got pissed at Gene Fidell when he rightfully called them on using boilerplate language.

Anonymous said...

This goes well beyond a lack of substance: this is dereliction. These aren't just judges, they're senior military officers too. They owe the taxpayers a better effort. What a black mark for ACCA.

Anonymous said...

Anderson got busted for trying to sell classified information to Al Quaeda members--turned out they weren't Al Quaeda, but rather undercover CID agents. And this was not a guilty plea case. I don't buy into the whole "using expert to negotiate a good PTA" argument--can't do that if your client won't or can't plead guilty. This was a panel case. As far as deferring to ACCA, CAAF is less inclined to do that when ACCA doesn't explain it's opinion, even when it comes to issues involving "abuse of discretion." That usually works out in the accused's favor.

Anonymous said...

World to Bridget--the Government doesn't care about the expense of a trial. I've seen the Government spend hundreds of thousands of $$$, if not millions, for a contested case, only to end up losing, and the TCs were told from the beginning that their cases sucked. The Government will spend $1M on its own experts if it thinks it will gain a conviction from it. The problem lies in the defense having to justify the cost of an expert. I think it's vastly unfair for defense to have to justify every single dime, when the Government doesn't have to do the same.

John O'Connor said...

The defense doesn't have to justify its expert costs. It can spend whatever it wants. Oh, it does have to justify those expenses to the government when it wants the government to pay for it.