In its new opinion in United States v. Bridges, __ M.J. ___, Docket No. 1233 (C.G. Ct. Crim App. May 18, 2007), the Coast Guard Court creates a split with the Navy-Marine Corps and Army CCAs.
The issue in Bridges concerns the introduction of uncharged misconduct while Bridges was confined in the brig in “rebuttal” to a mitigation letter from his father during the sentencing hearing. A two-judge majority of the panel holds that the evidence was properly admitted and specifically rejects the Army Court’s holding in United States v. Henson, 58 M.J. 529 (A. Ct. Crim. App. 2003), and the Navy-Marine Corps Court’s holding in United States v. Lowe, 56 M.J. 914 (N-M. Ct. Crim. App. 2002).
The Coast Guard Court reasons that “the prohibition of M.R.E. 404(b) do[es] not obviously apply after the accused has been convicted, since there is no longer a danger of conviction on the basis of prior misdeeds . . . .” The Coast Guard Court criticizes Henson for “leap[ing] from the pre-findings context . . . to the presentencing context without explanation.”
The Coast Guard Court is just as dismissive of Lowe: “United States v. Lowe, 56 M.J. 914 (N.M.Ct.Crim.App. 2002), supports Appellant, but we find it no more persuasive than Henson in that it misapplies United States v. Wingart, 27 M.J. 128 (C.M.A. 1988).”
Judge Felicetti writes separately in Bridges and concludes that the evidence of appellant’s misconduct in the brig was erroneously admitted. But he concurs in the result, finding that the error was harmless.
As both the majority and concurring opinions suggest, the prejudice prong is difficult for the defense to meet in this case. In deciding when to exercise its discretionary jurisdiction, CAAF usually gives great weight to whether the supp suggests that the assigned error actually prejudiced the defense. One wonders whether CAAF will nevertheless grant review in Bridges (assuming Bridges petitions for a grant of review) to resolve the service split that the Coast Guard Court’s opinion prominently highlights. Given the recent paucity of grants, at least it would provide an interesting hour of oral argument next term.