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.]

15 Responses to “Walker’s central holding”

  1. Anonymous says:

    Who was the knucklehead trial judge? Speed kills.

  2. Anonymous says:

    Yet another murderer gets off…

  3. Anonymous says:

    …and the defense bar celebrates!

  4. Babu Kaza says:

    What are the chances that the government doesn’t appeal this to CAAF, and instead, on remand, cops a deal to take death off the table, and thereby saves itself another 15 years of litigation?

  5. Anonymous says:

    7:52 anon: Factual error – He did not “get off.”

    7:53 anon: I did not see or hear the slightest hint of “celebration” by the defense bar.

    7:54 anon: You were about to say something. Stop. You are dumb…and will continue to be dumb in one minute increments from 7:52 through eternity.

  6. Anonymous says:

    So is this another example of a “no value added” court of criminal appeals adding value?

  7. CAAFlog says:

    0752 Anon,

    No one got off. LCpl Walker remains convicted of an offense for which the mandatory minimum is life in prison.

  8. Anonymous says:

    Col Jowers was the MJ. Nice guy, but a seat of the pants kind of judge. Shouldn’t have been assigned to a death penalty case.

  9. Anonymous says:

    I wonder what the consequences would be for a District Attorney who’s office was unable to sustain a capital conviction on appeal 100% of the time?

  10. Anonymous says:

    Since comparing a trial level organization in the Marine Corps and a District Attorney’s office is like comparing apples to a turnip your post is just that.

  11. Anonymous says:

    civility — out the window. You must be from Code 46.

  12. Anonymous says:

    The post was asking a question that could not be answered. THe question really didn’t deserve much attention and the post was as civil as the question pondered. And not from 46.

  13. Anonymous says:

    Honest question from a CAAFlog reader: Are people at Code 46 really as nasty and uncivil as everybody says they are?

    I often read “murderer gets off” and “CAAF soft on sex crime” rants. But I do not think these come from Code 46 people. These comments are too shallow to come from attorneys.

  14. Anonymous says:

    Despite CAAFlog’s affiliation with the naval service lets remember this blog is read by many people (including all service appellate counsel on both sides). And, lets not forget, now by the world after several newspaper articles. Those that direct there vitriol at Code 46, hmmm…where would they be working?

  15. Anonymous says:

    …at the Brig?