Friday, July 10, 2009

Quick McCracken observation

Interestingly, the majority went the same way -- and for the same reason -- as Senior Judge Couch's dissent below. Senior Judge Couch, on whom the No Man bestowed "The Great" status, recently left NMCCA when he retired from the Marine Corps.

More later as I continue to explore the points of contention among CAAF's three opinions in McCracken.


Anonymous said...

LtCol Couch must have experienced an epiphany in either late December 2007 or early January 2008.

On 11DEC07, LtCol Couch authored the opinion in U.S. v. Thompson, wherein the court found the charge of kidnapping to be factually and legally insufficient. The court then went on to affirm a conviction for the lesser included offense of a simple disorder under Article 134.

The CAAF reversed the “decision of the United States Navy-Marine Corps Court of Criminal Appeals affirming a conviction of reckless endangerment under Article 134, UCMJ, . . .”

On 29JAN08, LtCol Couch authored the dissent in U.S. v. McCracken. The majority in McCracken “set aside the guilty finding to indecent assault as a lesser included offense of the charged offense of rape. We affirm a guilty finding to the lesser included offense of indecent acts with another, in violation of Article 134, UCMJ.” LtCol Couch did not concur with the majority’s “decision to affirm a finding of guilty for indecent acts with another . . .” LtCol Couch cited U.S. v. Riley for the proposition that “[a]n appellate court may not affirm an included offense on ‘a theory not presented to the’ trier of fact.”

This is not intended to call into question LtCol Couch’s newly-minted moniker. And it may be possible for someone to square these two positions. Nevertheless, it is noteworthy that LtCol Couch would come to such different conclusions in such a short period of time.

P.S. Cloudesley stop with the comments and study the charts of the waters off Little Porth.

Anonymous said...

We will need to parse Thompson a bit more closely to see if Dreadnaughts's hypothesis is correct. Anyone have a copy?