Tuesday, May 22, 2007

New CAAF opinion

CAAF today released its opinion in United States v. Roberson, __ M.J. ___, No. 06-0611 (C.A.A.F. May 22, 2007). Roberson will probably be best remembered as the case that filled in for Cabrera-Frattini at the Loyola Law Project Outreach argument.

Judge Erdmann writes for a unanimous court. The Cliff's Notes version of the decision is that the military judge erred by excluding a wheelbarrow full of defense evidence, but that it wouldn't have changed the case's outcome. Oh, and the 1,524 days (!) of appellate delay were non-prejudicial. Affirmed.

1 comment:

Jason Grover said...

Roberson was the case where Lance Corporal Walker, one of the Marines on death row, filed for leave to file as an amicus curiae on the right to present a complete defense issue under Holmes v. South Carolina, 126 S. Ct. 1727 (2006). See here (http://caaflog.blogspot.com/2007/02/caaf-rejects-amicus-brief-why-cant-we.html)(sorry No Man, I couldn't figure how to do it in comments vice posts) for the CAAFlog discussion of CAAF's denial of that amicus. CAAF denied the motion on its Daily Journal for 31 January 2007. But the Roberson opinion lists Major Rick Belliss, LT Rich McWilliams, and myself as counsel for the Appellant. Rick, Rich, and I signed the motion to file the amicus on behalf of LCpl Walker, but never represented Roberson. This was always Maj Rolando Sanchez's and LT Scott Stoebner's case.

The Court resolved the constitutional right to present a defense issue in an interesting manner. The Court assumed that Roberson had a right to present this evidence and that it was improperly denied. But when determining the proper standard to view the error, CAAF refused to apply the constitutional harm standard requiring the government to show that the error was harmless beyond a reasonable doubt because "Roberson presented other evidence to establish virtually the same facts in support of a duress defense . . . ." So CAAF found he was not denied a meaningful opportunity to present a complete defense under Holmes. Instead CAAF applied the normal harmlessness test under Article 59(a).

Based on this very short look at Holmes, it appears as if the critical issue for CAAF in a right to present a defense case is whether the evidence that was kept out related to facts that came before the court-martial in some other way or not. If the denied evidence was not duplicated and some facts were not otherwise in front of the court-martial, that might be enough show a denial of a "meaningful opportunity to present a complete defense" under Holmes.

United States v. Woolheater, 40 M.J. 170 (1994) was not mentioned in the opinion even though it is CAAF's primary right to present a defense case. But that isn't too surprising as the right to present a defense issue was a very small part of the opinion.