Friday, November 30, 2007

Brown's essence

In Brown, the military judge (the universally respected Chief Judge Vowell) "instructed the members on rape" and three lesser included offenses including indecent assault. "She instructed the members that to find Appellant guilty of indecent assault, they could find he did so 'by inserting his fingers and penis, or fingers, or penis into [PFC NB's] vagina.'" United States v. Brown, __ M.J. ___, No. 07-0286, slip op. at 5 (C.A.A.F. Nov. 30, 2007). The members found Staff Sergeant Brown not guilty of rape but convicted him of the lesser included offense of indecent assault. The issue before CAAF in Brown was whether "the military judge erred by instructing the members that Appellant could be convicted of indecent assault based on any one of three factual scenarios, without requiring the members to vote on each scenario and to disclose the factual basis of their findings." Id., slip op. at 5-6.

CAAF definitively and unanimously answers, No. Judge Stucky's opinion for the Court reasoned:

With minor exceptions for capital cases, a "court-martial panel, like a civilian jury, returns a general verdict and does not specify how the law applies to the facts, nor does the panel otherwise explain the reasons for its decision to convict or acquit." United States v. Hardy, 46 M.J. 67, 73 (C.A.A.F. 1997). In returning such a general verdict, a court-martial panel resolves the issue presented to it: did the accused commit the offense charged, or a valid lesser included offense, beyond a reasonable doubt? A factfinder may enter a general verdict of guilt even when the charge could have been committed by two or more means, as long as the evidence supports at least one of the means beyond a reasonable doubt. Griffin v. United States, 502 U.S. 46, 49-51 (1991); Schad v. Arizona, 501 U.S. 624, 631 (1991) (plurality opinion) ("We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone.").
Id., slip op. at 9-10.

As Judge Mathews the Greatest indicates in his comment to the post below, it's hard to argue with that conclusion.


Anonymous said...

I agree with Judge Mathews. Why grant on an issue that is settled? CAAF probably just wants to pad its stats. That's probably why it went to 20 minute arguments, i.e. - let's grant on previously settled issues so we don't have to listen for very long.

Anonymous said...

Not at all sure JMTG would agree with your post. Whoever this recurrent "anonymous" is appears quite jaded when it comes to the CAAF. One can only speculate as to the why; it all seems pretty petty and lacking in any sort of logical or factual foundation. But hey -- it's a free country.

Anonymous said...


I agree. This "anonymous" seems troubled. Maybe someday he/she will see the light.

Anonymous said...

Sorry if I appear jaded. I'm just tired of CAAF revisiting the same law in published cases. How many treatises on "implied bias" or "new matter in the SJAR addendum" do we need? And of course, we have the latest phenomenon, jurisdiction in Art. 62 appeals - an issue resolved over 30 years ago in Tucker. Do we need another extended opinion on this same issue in Lopez de Victoria and Michael. I think a lot of these cases can be resolved without oral argument or a lengthy restatement of the law. Summary dispositions work just fine. Again, sorry to appear jaded or troubled. Tough work being a defense counsel.