Friday, August 17, 2007

EGAD! Government concedes Wilson?

In case any of you don't read the comments to the posts here on CAAFlog, here is what appears to be an enormously important development in the Wilson case brought to our attention by an anonymous Yankees fan:

Anonymous said...
And too bad the Army government appellate division already conceded the issue in its final brief. Where is appellate advocacy when we need it? Let's have a debate, not a rollover. As the Scooter used to say, "Holy Cow!"

Fri Aug 17, 06:14:00 AM EDT

I assume the conceded issue is whether a reasonable and honest mistake of fact as to age is a defense in a sodomy case.

Appellate courts are fond of saying that they need not respond to a party's concession like a Pavlovian dog, so this may not end the discussion. And the wording of the granted issue in United States v. Gainous, __ M.J. ___, No. 06-0932/NA (C.A.A.F. Aug. 14, 2007), suggests that at least someone on CAAF may not see the case the same way that apparently both GAD and DAD do. But this seems to be a rather huge development. Can anyone with access to the parties' filings shed further light on this?

Also check out Fitz's important comment here.


Anonymous said...

Pg 2 of the GAD brief (summary of argument) says: "The Government agrees that mistake of fact regarding age can be a defense to sodomy with a child who is 12 but not yet 16 years old. However, appellant's pleas of guilty to sodomy with a minor was provident; his deliberate and negligent ignorance regarding [the victim's] true age rendered a mistake of act defense unavailable." And then the confusing analysis, at pp 5-6: "Accordingly, in light of this Court's holding in Zachary, the Government agrees that a mistake regarding age defense applies to sodomy with a minor under 16 but who has attained the age of 12 years. This concession does not end the analysis. Because sodomy is, and will continue to be a crime under Article 125, UCMJ, not Article 120, UCMJ, the mistake regarding age defense in Article 120, UCMJ, cannot apply to offenses under Article 125, UCMJ. Instead, the general mistake of fact defense under RCM 916(j) applies. Because nothing in RCM 916(j) specifically limits its application to sodomy with a minor in the way Article 120, UCMJ, limits its defense's application to all other sexual offenses with minors, the Government contends that RCM 916(j) is ambiguous, and asks this Court to use its powers of interpretation to make the two mistake of act defenses consistent in their applications to all sexual offenses against minors." This one is above my pay grade.

Publius said...

I note the Daily Journal entry for 3 May is as follows:

No. 06-0870/AR. U.S. v. Alexander N. WILSON. CCA 20040227.

On further consideration of the previously filed briefs and oral argument held on April 30, 2007, it is ordered that Appellant and Appellee shall brief the following issue:


It is also ordered that all government and defense appellate divisions are invited to file amicus curiae briefs under Rule 26; that Appellant’s brief shall be filed no later than June 4, 2007; that Appellee’s brief shall be filed no later than 30 days after the filing of Appellant’s brief; that Appellant’s reply brief, if any, shall be filed no later that 10 days after the filing of Appellee’s brief; that any briefs from amici curiae shall be filed no later than 10 days after the filing of Appellee’s brief; and that requests for enlargements of time will not be granted in the absence of extraordinary circumstances.

So what did the other appellate shops say. Certainly the other services didn't concede, did they?

Anonymous said...

Navy appellate defense filed an amicus brief, but no other service, and no other government appellate division, weighed in.

Publius said...

Maybe that's why the argument is set for only 15 minutes. If the Government is going to agree with the defense, they shouldn't need any more than 5 minutes.

I share Colonel Sullivan's surprise. No matter how the CAAF decides the issue, the dictum in Zachary is so full of holes that there is plenty of room for good honest argument that mistake of fact as to age is not a defense to sodomy.

I hope the TJAGs know what is going on. I feel this inter-service failure is appalling.

Anonymous said...

If anyone understands the government's "argument" maybe they can interpret it for us; it appears to makes no sense at all, and counsel appears to have not read RCM 916 in its entirety.

Anonymous said...

I can't see how the defense would not apply. Before getting to that, though, the comment in Strode about the defense not applying to sodomy was itself dicta (the issue presented in Strode dealt with indecent acts with a child). So, the language used in the grant in Gainous is puzzling.

Now, as to the substance of the issue, it would seem to me the question turns on two things: 1) whether age is an "element" of the independent crime of sodomy with a minor; and 2) if so, was it intended to be a strict liability crime. The first issue implicates the Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), that any fact that increases the potential maximum for a crime essentially must be treated as an element of that offense. Here, age obviously increases the possible sentence for sodomy from 5 to 20 years. So, it looks like Apprendi would say age is an element.

If this is true, then sodomy with a minor is a separate offense from simple sodomy and 916(j) by its very language, applies unless the offense was intended to be a strict liability offense. Since 916(j) says the defense applies to any offense, this would include the aggravated offense of sodomy with a minor, especially since there is no indication the President intended the age "element" to be strict liability. So, based on all this, it looks like the defense must apply. This would be consistent with how age is treated in other sex offenses such as carnal knowledge and indecent acts with a child. It would also be consistent with how other Presidentially created "elements" for sodomy are treated. For example, the mistake of fact defense applies to the "by force and without consent" "element."