tag:blogger.com,1999:blog-34853720.post5399628743336706423..comments2023-08-24T10:39:23.460-04:00Comments on CAAFlog: CAAF reverses AFCCA on member challenge issueDwight Sullivanhttp://www.blogger.com/profile/11657981110237418710noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-34853720.post-28961898558908026262008-11-14T12:00:00.000-05:002008-11-14T12:00:00.000-05:00Just for kicks, how about this one: If you were a...Just for kicks, how about this one: If you were a panel member in a situation where a Special Forces Soldier shot and killed a hooded and bound Osama Bin Laden, if he was found guilty would you consider no punishment?<BR/> <BR/>That is the only hypothetical I can think of where that passes the laugh test. Otherwise, its a silly question.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-45932973647224141322008-11-14T10:30:00.000-05:002008-11-14T10:30:00.000-05:00This is a very bizarre area of law. The CAAF proba...This is a very bizarre area of law. The CAAF probably got it right but the rule that requires a panel member to say he will consider "no punishment" even in a murder case is absurd.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-780862456975883772008-11-13T18:22:00.000-05:002008-11-13T18:22:00.000-05:00What is implied bias? Some bias that would lead a...What is implied bias? Some bias that would lead an objective observer to question whether the accused received a fair hearing. Here, in a sentencing case where the accused pleaded guilty to using meth, the challenged member said in voir dire that under Air Force guidelines, illegal drug use isn't tolerated and there wasn't room in the Air Force for such types. Fair general statement. Also, the member stated that if someone used illegal drugs, he should receive some punishment. Another fair general statement. The military judge then clarified with the member that he would be able to consider the full gamut of sentencing options. Fair general rehabilitation. <BR/><BR/>The military judge and three CCA judges - all fairly objective observers - rejected a challenge for cause because they believed that the accused could receive a fair sentencing hearing with this member. I find nothing in the record to overturn that decision. <BR/><BR/>Apparently, CAAF is composed of better objective observers - like obscenity, they know implied bias when they see it. The rest of the world is left to guess. <BR/><BR/>Well, if CAAF judges are better observers, then why didn't they see any implied bias in US v. Elfayoumi, 66 MJ 354, when the challenged member in a forcible sodomy case said he had STRONG moral and religious objections to homosexuality and pornography. According to CAAF, that member was okay. So how can CAAF reconcile the result in Martinez with the result in Elfayoumi?<BR/><BR/>Easy. CAAF ignores Elfayoumi. Elfayoumi, CAAF's latest iteration of the implied bias circus, isn't even mentioned in Martinez. In my opinion, that failure to distinguish the two cases borders on judicial cowardice.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-32838466243115797792008-11-13T17:45:00.000-05:002008-11-13T17:45:00.000-05:00One of the (many) problems with member sentencing ...One of the (many) problems with member sentencing is that the law of member challenges reaches absurdity in the "consider full range of authorized punishments" context. You can have a murder case, and the DC will ask the members if they could consider giving no punishment if they found the accused guilty of murder. Of course, any member saying "yes" is probably lying or fooling himself. So you end up with this ridiculous kabuki dance when a member forthrightly says he really couldn't imagine considering no punishment for a conviced murderer, or a drug dealer, or a child molester, and the TC and MJ try to put words in his mouth to say something that probably isn't true (and probably can't be true).John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-11791825457269361962008-11-13T17:33:00.000-05:002008-11-13T17:33:00.000-05:00Now, if only the AF CCA would recognize that Court...Now, if only the AF CCA would recognize that Courts are also required to provide "justice" versus merely being a vehicle to enforce "good order and discipline," they might be on to something......Dew_Processhttps://www.blogger.com/profile/12952551772411097184noreply@blogger.com