Friday, January 23, 2009

NMCCA argument webcast is a total success

The sound quality for NMCCA's inaugural oral argument webcast is outstanding -- better than for CAAF's oral arguments. Both counsel were superb and the bench was hot. Any lawyer who stumbles across the argument online will be impressed with the quality of the advocacy and the incisive questions from the judges. This is a very favorable development.


Anonymous said...

I listened to the argument and I agree with your initial assesment. Sound quality is good, counsel were well prepared and did a fine job, and this is a favorable trend.

Question: What is the issue that Defense, at the outset of their argument, indicated that they do not recognize the jurisdiction of NMCCA? Is LT Ambrose part of the Montana Freemen? I also heard a reference in a question by one of the judges that the military judge discharged the member panel (I think he characterized that action as imprudent, or something akin to that). Does anyone know what happened and what that means if the NMCCA decides the case in favor of the Govt? Was that the issue that caused the Defense to not acknowledge jurisdiction?

Anonymous said...

Anon 9:53 - As I understand it, the judge dismissed the case after the close of all the evidence, when everyone in the courtroom was anticipating closing arguments and adjourned the case. The gov't took an appeal from that ruling - the defense's position seems to be the gov't can't appeal at this point.
Anyone have any insight how this oral arg compared to the one argued in Jan dealing with the Marine case from Beaufort?
My take after listening to the oral arg (thanks NMCCA - great call!!) is that the NMCCA engages in judicial activism and to quote one judge's comment in the oral arg "saves the government's bacon" by providing an appendix to their opinion setting forth the instructions an MJ must give when consent is raised. I know those of us at the trial level want an answer!!!

Anonymous said...

It is my understanding that the MJ instructed the members that their job was done and discharged them. The Art 62 appeal came after the members were discharged. If the Govt succeeds on appeal, the case goes back to start where they left off. Don't the original members have to hear the rest of the case?

Anonymous said...

Ditto--bravo, NMCCA. Taped oral arguments, as with taped confessions, increases transparency and adds to faith and trust in the system. Perhaps more importantly, Trial Counsel and Defense Counsel, who otherwise are relegated to reading cold briefs, have the quickest and most reliable way of gauging the tenor of the Courts of Criminal Appeals as well as the current state of, and faith of appellate counsel in, their arguments. Great move to improve the system, let's hope this becomes the norm for all oral arguments at the CCAs.

Justin said...

I enjoyed both New Article 120 arguments at the JAG Center for Appellate Outstandingness.

In response to Anon 11:02, the January oral argument - a pretrial dismissal - whetted appetites for an appellate case based on evidence, arguments, and case theories actually presented on the record. That case had been dismissed at a pretrial stage. Almost all the appellate judges' questions (to the Gov't) in January focused on, "What factual scenario did Congress have in mind when it eliminated consent as an element, then created a consent affirmative defense that so closely mirrored the force element of the crime?" To which the Gov't (correctly) responded (over and over), "A narrow one, but it doesn't matter at this stage because we don't know what theories would implicate Art. 120(t)."

Back. And forth.

And then, the Neal case on Friday. Evidence. Gov't case-in-chief. 917. Defense case-in-chief. Gov't rebuttal. And so forth. And then close. Dismissed.

A chance to hear the "as-applied" arguments in full flower, blooming differently from a pretrial dismissal? I didn't hear the distinctions I'd been hoping for. Chief Judge O'Toole and Judge Maksym asked the same (or very similar) questions.

Which leaves me wondering: is the facial challenge to 120(t) really any different from a challenge to an application to a particular set of facts?