tag:blogger.com,1999:blog-34853720.post2939145184928511975..comments2023-08-24T10:39:23.460-04:00Comments on CAAFlog: New CAAF opinionDwight Sullivanhttp://www.blogger.com/profile/11657981110237418710noreply@blogger.comBlogger9125tag:blogger.com,1999:blog-34853720.post-467763081301052292007-06-15T19:41:00.000-04:002007-06-15T19:41:00.000-04:00Au contraire, Anonymous, I assume just the opposit...Au contraire, Anonymous, I assume just the opposite: that the SJA DIDN'T know what he was doing. It's pretty clear from the context that what he was trying to do was drop the charges and he clearly did it the wrong way by purporting to withdraw them instead of dismissing them (if he didn't intend to drop the charges, presumably they would have poppsed up in some other forum).<BR/><BR/>My point was a little different, that it as clear what the SJA was trying to do, and it's silly to thwart that clear intent just because the execution was all screwed up.John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-10066070758618361762007-06-15T13:04:00.000-04:002007-06-15T13:04:00.000-04:00I do think J O'C's assumption that the SJA knew wh...I do think J O'C's assumption that the SJA knew what he was doing in asking for a withdrawal v dismissal might be stretching things. Just because an SJA makes O-5 doesn't always mean they are great lawyers and understand the RCM backwards and forwards. SJA's, like Frank Spinner, can foul up sometimes too.<BR/><BR/>The early indications are that this case will not be appealed higher. I wonder if that is a wise decision, after all, cert was sought for Cossio, another Art 10 case, and that one was a 12 page unanimous decision. This one stretches 44 pages, and is 3-2. Can anyone else see a cert worthy issue on either 6th Amendment or Art 10 grounds, or on either plain language vs divination of intent? Simply put, it seems that this was an issue of fairness, similar to no man's goosey analogy.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-19812405103625692882007-06-13T18:03:00.000-04:002007-06-13T18:03:00.000-04:00I'm not sure I ever saw a defense motion that wasn...<I>I'm not sure I ever saw a defense motion that wasn't just copied from a disk.</I><BR/><BR/>Harsh. Not necessarily unfair, or even untrue, just ... harsh.<BR/><BR/>Tippit's trial defense counsel, though, was Frank Spinner. You'd think he'd have known better than to overlook Article 10. Frank's a pretty bright guy ... just ask him, and he'll tell you.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-75349354286742176322007-06-13T13:20:00.000-04:002007-06-13T13:20:00.000-04:00Anonymous:As for your question why the DC didn't m...Anonymous:<BR/><BR/>As for your question why the DC didn't mention Article 10, I'm sorry to say this, but I wouldn't be surprised if a high percentage of TCs and DCs don't really grasp that there are multiple speedy trial regimes with different rules for each. And I would say the same thing about trial level understanding of the difference between withdrawal and dismissal of charges. My experience was that much of the trial bar was about getting up in front of the jury with little understanding of the military justice structure or the pretrial machinations available to the defense. I'm not sure I ever saw a defense motion that wasn't just copied from a disk.John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-78411661741243300702007-06-13T11:59:00.000-04:002007-06-13T11:59:00.000-04:00I guess Mathews month truly ended two weeks ago, a...I guess Mathews month truly ended two weeks ago, as JMTG and Judge Erdmann came to the same conclusions, though from different angles. Too bad, I would have loved to have had an additional month of the OCFCJ. I think both JMTG and Judge Erdmann were spot on, since in this case the gov't didn't seem like they could find their gluteal regions with a map and a flashlight, yet somehow still pulled out a W. And what was the defense thinking when they didn't bring up Art 10 anyway? Would have made sense to at least have mentioned it.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-22164675184815102652007-06-13T10:57:00.000-04:002007-06-13T10:57:00.000-04:00I think Mr. O'C is on to soemthing there. Seems t...I think Mr. O'C is on to soemthing there. Seems the actual language of Tippit and Mizgala is why they held Tippit's feet to teh fire in this case. On Page 16, CAAF wrote, "In Mizgala, we concluded that Article 10 provides a narrow<BR/>exception to the normal rule that a speedy trial motion is waived by an unconditional guilty plea. 61 M.J. at 126." Suggests they are trying to make Mizgala as narrow an exception as possible. But, the juxtapostion with the later holding does run against my normal sauce for the goose, sauce for the gander instincts.Mike "No Man" Navarrehttps://www.blogger.com/profile/11434921480452541955noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-56027180541454481712007-06-13T09:01:00.000-04:002007-06-13T09:01:00.000-04:00I actually agree with anonymous that it is silly t...I actually agree with anonymous that it is silly to slice the onion so thinly as to find a failure to raise Article 10 below. But then, I also see no good reason why a court should find that an Article 10 motion is not waived by an unconditional guilty plea (yes, I know that CAAF came out the other way on this, so you can save me the cites).John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-41893610840605770202007-06-12T21:41:00.000-04:002007-06-12T21:41:00.000-04:00The high point of the majority opinion, for me, wa...The high point of the majority opinion, for me, was the two pages spent holding the appellant's feet to the fire because he failed to invoke the words "Article 10" -- although both the government and the military judge saw the issue based on the facts that he did raise, and addressed the issue at trial. Strict compliance is required in legal matters, old chap, must use the right terms, dot the i's, cross the t's, pip pip. Or pay the price, don'tcha know.<BR/><BR/>Of course, what makes that part <I>really</I> enjoyable is the five pages later on, wherein the majority excuses the government's repeated use of the term "withdraw" to describe the action taken in appellant's case, calling it a "colloquial" phrase with the same meaning as "dismiss." Never mind that the legal consequences in this case are entirely different, you see: when the SJA and convening authority use the wrong legal terms, it's best if we show some lenity.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-39832813796416770542007-06-12T21:20:00.000-04:002007-06-12T21:20:00.000-04:00It's the right result, but I think the conclusion ...It's the right result, but I think the conclusion of Judge Erdmann and my erstwhile NJS classmate Judge Ryan that the "withdrawal" of charges was a nullity is a bit silly. The clear intent was to drop the charges because, as the court notes, using "withdrawn" in its technical sense would be a nullity prior to referral. So why would a court try to reach a result that is clearly contrary to the intent of the parties who took the action in question? That remjinds me of attempts to saddle the government with completely absurd results by construing poorly-drafted CA actions to reach a result clearly not intended (such as when there's an argument that the CA didn't approve the punitive discharge where the CA simultaneously approved confinement of a decade or more).John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.com