The central holding in NMCCA’s decision setting aside the death sentence in United States v. Walker, No. NMCCA 9501607 (N-M. Ct. Crim. App. July 8, 2008), is that the military judge abused his discretion by denying a defense request for a continuance to give a substitute expert witness an adequate opportunity to prepare his testimony.
At trial, the defense’s original expert on intoxication essentially attempted to extort a favor from the trial defense counsel by suggesting that he would provide bland testimony if the DC didn’t help him out or provide compelling testimony if he did. (The witness, who was a Navy commander, was later court-martialed himself.) The defense obtained a substitute expert, but he was given only 96 hours from his hiring to prepare his testimony. The defense sought additional time, but the military judge provided a one-word response: “Denied.” In front of the members, the TC’s cross-examination effectively highlighted the wealth of information that the expert hadn’t considered in forming his opinion. Had the expert had more time, he likely would have reviewed some or all of the information that the TC demonstrated he hadn’t considered.
Applying the 12-step analysis from United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997), NMCCA held that the military judge abused his discretion by denying the defense continuance request. Quoting CAAF’s opinion in United States v. Weisbeck, 50 M.J. 461, 466 (C.A.A.F. 1999), NMCCA observed that “[u]nreasonable and arbitrary insistence upon expeditiousness in the face of justifiable request for delay is an abuse of discretion.” Walker, slip op. at 25 (internal quotation marks omitted). The court held that the error prejudiced the defense’s ability to attempt to rebut the specific intent elements of two offenses of which LCpl Walker was convicted. NMCCA set aside a robbery conviction and the premeditation element of one of the two premeditated murder specs, set aside the sentence, and authorized a rehearing and a resentencing that could again result in the death penalty.
[DISCLAIMER: Three of the seven CAAFlog commentators, including me, served as appellate defense counsel for LCpl Walker.]