Friday, September 07, 2007

New published NMCCA opinion -- Toto, I don't think we're in 1995 anymore

LCDR Davis was originally sentenced to confinement for life in 1995. His sentence was later overturned by CAAF, United States v. Davis, 60 M.J. 469 (C.A.A.F. 2005), and he was resentenced in 2006. At that resentencing hearing, the military judge and all of the parties agreed that they would pretend it was 1995. The members were instructed to do so as well. Presumably this involved continuously playing Shaggy's "Boombastic" in the background as the court-martial's soundtrack. Wrong, ruled NMCCA, in a stunning rebuke to Shaggy (who is, after all, a USMC Desert Storm veteran). NMCCA held: "Based on the Rules for Courts-Martial, recognized military sentencing principles and the persuasive authority of [United States v.] Rivers, [27 C.M.R. 949 (A.F.B.R. 1958)] and [United States v.] Rosenthal, [62 M.J. 261 (C.A.A.F. 2005)] and considering the practical difficulties in limiting evidence on resentencing to facts in existence prior to a certain date, we conclude the military judge erred by excluding evidence of facts arising after 22 September 1995." United States v. Davis, __ M.J. ___, No. NMCCA 9600585, slip op. at 8 (N-M. Ct. Crim. App. Aug. 30, 2007).

While Davis isn't yet on NMCCA's public web site, it was uploaded to NKO today, and we have put it on the web site here.

Despite ruling that the parties should have acknowledged that they were resentencing LCDR Davis in 2006, not 1995, NMCCA held that appellant had invited the error and therefore "may not now complain he was harmed by it." Id., slip op. at 10. The court also declined to find plain error. Id.

Finally, while this was a post-Moreno case that blew the 120-day deadline for the CA's action, NMCCA balances the four post-trial delay factors and finds that LCDR Davis's due process rights weren't violated.


Phil Cave said...

Is there any indication about adverse information that was kept from the members, as a result of the procedure used. For example, the victim impact was significantly worse? Or vice versa, the victim impact had been signficantly mitigated. That might be a reason to "freeze" the evidence at a particular point in time?

Hayes said...

The victim-impact evidence was what you would expect from someone who had been repeatedly raped by her step-father for almost a decade: her life had been a mess since 1995. It didn't help that her family -- all of them -- sided with LCDR Davis (it was chilling to listen to the fam's opinion of it all).

The government was precluded from dredging any of that up on direct examination (despite our objection to the contrary). Instead, the gov't had to rely on an expert in "potential" psychological impact to go through a series of WAS very awkward and artificial.

But, in the end it was a non-issue; the MJ didn't even let the victim testify (her flight was delayed due to weather) when he denied the gov't motion to continue for half a day to let her arrive.

Also, to clarify, the gov't did object about the exclusion of post-trial evidence, citing U.S. v Rivers as persusive. But, we should have remained consistent with our original position -- that such evidence was admissible -- and not objected to the defense's attempts to offer it (even though they initially objected to any evidence that wasn't in existence in 1995).