Thursday, December 18, 2008

CAAF issues instructional error opinion

CAAF released its opinion today in United States v. DiPaola, __ M.J. ___, No. 08-0200/NA (C.A.A.F. Dec. 18, 2008). The opinion is available here. By a 4-1 vote, the court held that the military judge erred by not giving a reasonable and honest mistake of fact instruction in an indecent assault case. The majority also held that the error was not harmless beyond a reasonable doubt. Judge Erdmann wrote for the majority. Judge Stucky dissented. The court reversed NMCCA's decision, which had held that the military judge didn't abuse his discretion by failing to give the instruction.

As was the case in United States v. Crudup, __ M.J. ___, No. 08-0392/AR (C.A.A.F. Dec. 4, 2008), which we discussed here, the differences between the majority and the dissent don't appear to involve any questions of law or doctrine. Rather, the different preferred outcomes appear to be related to the judges' views of the facts of this particular case.


Cloudesley Shovell said...

If nothing else, the opinion is notable for the rather graphic details it provides on the sexual encounter at issue.

Pretty close call on the application of the law to the facts; both sides had very good points.

Judge Stucky points out that the military judge wondered on the record whether mistake of fact as to consent was even a defense to indecent assault. Since the first element of the offense is an assault, which by definition is non-consensual, requiring proof of lack of consent, one wonders what the military judge was thinking.

Anonymous said...

How would this play out under the new 120 scheme?

Any insight from anyone on how the oral arg on the new 120 went at the Navy Court?

Anonymous said...

CAAF actually affirmed the remaining specifications and remdanded the case back to the CA for either a rehearing on findings as to the single spec it set aside or a sentence rehearing for the rest of the specifications.

I'll place my bet that the CA just does a sentence rehearing.

Anonymous said...

Dear Judge Stucky,

Don't hate the player, hate the game.