Tuesday, June 23, 2009

NMCCA issues unpublished opinion in Moreno

NMCCA today issued a lengthy unpublished opinion affirming Cpl Moreno's conviction and dishonorable discharge (the max authorized sentence under CAAF's opinion) on remand. United States v. Moreno, No. NMCCA 200100715 (N-M. Ct. Crim. App. June 23, 2009). We've posted the opinion here.


John Lancaster said...

What a disgrace, C.A.A.F is going to have to clean up this mess. The government made more of a mess in this thing this time around. The commander that made the decision to retry this should receive a reprimand. Its simply not feasible to dispense justice under these circumstances the government wanting a second bite out of the proverbial fruit makes a mockery of the miljus system. NMCCA'S Opinion leaves one with a headache. Come on, witnesses not produced , documents missing
because it was destroy by the government,speculation upon speculation about what retested eveidence if preserved would show and this conviction passes muster at NMCCA?.

What a joke!

Anonymous said...

No wonder this opinion is unpublished, the good call in this quagmire

Anonymous said...

I share your view in this J Lancaster and am code 45

Anonymous said...

3 comments, each with errors.

Anonymous said...

What did you expect? See generally Denedo (Roberts, C.J., dissenting).

Anonymous said...

This seems like a very long opinion addressing a lot colorable, merely on their own, AEs.

Together, it is a lot of stuff.

I think this is a case where a cumulative error argument could legitimately have been made or perhaps should be added on to the CAAF Supp.

Cossio said...

What's suprising is that the accused was still found guilty again despite missing evidence and witnesses -

- Oh wait. That's right. I had what we call "a brain fart". This is Military Justice after all.

To be fair and play Devil's Advocate, the missing evidence wouldn't really helped either way.

The Appellant admitted to having sex, what would blood samples prove? Or the misterious missing witness? Where they in the Appellant's room with an unconscious woman?

Well maybe they could have testified that there was some sort of motive to fabricate. Anyways, in this he-said-she-said where there was admitted sex, what does DNA evidence add?

I remember meeting an Army SSgt. who was accussed of "raping" his Wife years before his Wife decided to get a divorce while he was in Iraq.

Get this, he was called back from Iraq and CID performed a "rape kit" on him. Collecting DNA evidence despite the Accussed being married, and despite the alleged rape happening years before.

Anyways, I agree that CAAF is probably going to kick this to the curb because the mistakes were so blatant and the Defense was Prejudiced, even though the missing evidence probably wouldn't have mattered either way.

But a Defendant should prevail on matters of probability. Unlike when the AFCCA denied my petition because it "probably" wouldn't have made a difference.

Anonymous said...


Drop the "s" from "anyways," it is distracting.

Socrates said...

NMCCA's decision is within the bounds of reason. This was a "he said, she said," case - and the judges had an opportunity to review the victim's testimony. There were a few places, however, where I thought they squeezing too tightly to the verdict and did not seem to raise their collective eyebrows on some fundamental issues regarding an accused's ability to put forward a defense.

It was disturbing that NMCCA chose to rebuke LT Mizer only on the failure to produce witnesses issue when we were presented with a thinly disguised effort by the government to play diversionary games that push the ethical envelope.

Let me say it clearly: I do not believe the Government challenged or asked LT Mizer for more info. on the requested witnesses and then LT Mizer simply failed to respond. I think the government "sat on" Mizer's request and tried to run-out-the-clock. Why wasn't the government required to show its transmitted demands (emails?) for more info? To be more provocative, I think the government too often plays games like this.

If these witnesses testified at the first court martial, then an a priori case for their importance has already been made. Prosecutors are supposed to be "ministers of justice."

Trial judges allow the government to re-open their case under a fairly low threshold. Finding waiver here was an abuse of discretion and should be issue # 1 in the supplement to CAAF. NMCCA strains at a gnat when it essentially argues "Gotcha defense, you closed your case yesterday. Too late to complain about the production of witnesses. Nanny nanny poo poo"... Are you kidding me?

I hope the Supplement to CAAF compares and contrasts how liberally the government gets "do-overs" and can reopen their case in chief.

See, e.g., United States v. Hurst, NMCCA, 8 February 2007 ("...concerning the assertion in the appellant's brief...that the military judge 'improperly directed' the Government to reopen its case, when in fact he pointed out a technical deficiency and allowed the Government an opportunity to correct it.") Yes, the government is liberally given such "opportunities."

Anonymous said...


Nothing annoyed me more as a defense counsel than military judges who bended over backwards to assist trial counsel in making their case, telling them how to enter a document into evidence, or what foundational elements they were missing to satisfy a rule, or as you saying allowing "do-overs."

I know I am in the minority, but the concept of military judges "training" or "mentoring" trial counsel is simply not the role they should have.

TCs have senior TCs, and Chiefs of Justice, Deputy SJAs and SJAs to mentor, mold, shape, and train them, and they also have the experience of an acquittal or dismissed charge or denied evidence to train them.

John Lancaster said...

Like I said, what a joke. NMCCA SHOULD BE ASHAME. This I dont beleieve could pass muster at CAAF. Talk about an accumulation or bloopers!

Anonymous said...

O-tay, I will try really hard to drop my S's for use guys.


Cap'n Crunch said...

Every once in a while, I raise my eyebrows at a case from one of the CCA's that, on its face, raises the spectre of results-oriented judging. This is such a case. One can read and understand CAAF's skepticism at a retrial in the original opinion. I read the CAAF Moreno opinion to say to the government "you can retry this, but its on the government to show no prejudice from the delay." They didn't. No trial is perfect, but this one, and the NMCCA's results-oriented judging, creates a black-eye on the military justice system that CAAF will have to correct as it continues to try to push the system towards legitimacy.