Comments on: Medina – NMCCA’s Odd Twist on Art. 120

By: Anon

Anon — Sun, 20 Dec 2009 23:57:50 +0000

Can anyone explain in coherent and simple English what that proposed instruction says? I’m not bright enough to get it. I’m no Einstein, but my guess is that expecting a jury to understand it would be the functional equivalent of spinning them around 10 times to the point of nausea and asking them to pin the tail on the donkey.

By: Article16

Article16 — Fri, 18 Dec 2009 21:28:33 +0000

With a lack of mental responsibility defense it could make sense for the defense to ask for bifurcated closing arguments–I think that’s happened before. It doesn’t seem too unwieldy to me…it’s logical because unless I’m mistaken the panel has to vote separately on that issue.
I don’t think they do that in any other context.

By: ksf

ksf — Fri, 18 Dec 2009 20:43:57 +0000

Is the accused’s mistake of fact as to the level of the victim’s intoxication relevant?

Would it be relevant under Judge Booker’s instruction for the new Article 120?

By: John O'Connor

John O'Connor — Fri, 18 Dec 2009 20:40:18 +0000

Does an accused asserting lack of mental responsibility (an issue on which he bears the burden) have a constitutional or procedural right to argue first and last on the issue? I imagine that would be quite unwieldy given that the Government has the burden on the ultimate issue and, therefore, goes first and last on the merits.

By: Anonymous

Anonymous — Fri, 18 Dec 2009 20:10:58 +0000

The defense went with the theory that the MJ made an interlocutory decision that the defenses of consent and mistake of fact as to consent were raised, and the court rejected that argument. One of the main issues with a constitutional challenge to 120 is that when MJs simply do things the old way in regard to these defenses, you run into the argument that even if this method constitutes error, there is no prejudice to the accused since it lightens his burden. The court in this case held this way and I’ve had a trial judge do the same thing. The only argument I’ve thought of is this: Since the statute calls for the defense to prove affirmative defenses by a preponderance of the evidence, then the jury must make that determination. And so at the close of evidence the defense should get to present argument first and last on the issue of the affirmative defense. By denying the defense this opportunity to speak before the prosecution and to have rebuttal, the accused is prejudiced. I seriously doubt this argument would ever fly, you’d have to first convince a judge that the question of whether the affirmative defense is proved by a preponderance of the evidence is for the jury, and I’m sure there are many other hurdles, but I’d like to see someone try it.

By: John O'Connor

John O'Connor — Fri, 18 Dec 2009 13:50:26 +0000

How did the words “Funky Cold Medina” not make it into this post?

By: Anonymous

Anonymous — Fri, 18 Dec 2009 03:02:09 +0000

You are missing a service court that knows it is unconstitutional if they don’t allow the judge to do something which is also unconstitutional and change how it is apply by using prior definitions.

Tough needle to thread but you know the Service Courts are up to it! ;)

By: Late Bloomer

Late Bloomer — Fri, 18 Dec 2009 02:49:40 +0000

Wait, so an admittedly “poorly written, confusing, and arguably absurd” statute IS constitutional, but the military judge nevertheless did the right thing by NOT applying it as written? What am I missing?

By: Anonymous

Anonymous — Fri, 18 Dec 2009 00:40:49 +0000

Do taxpayers pay us more for filing en banc? If not it seems like the taxpayers are saved.

Even as I admit that like most I find the CCAs speed bumps on the way to CAAF from the defense side, I still think you do what you can on the big issues to give them every chance to do the right thing (from your perspective).

I don’t think you are representing your client by saying, ah, ACCA will never rule in our favor here, so what’s the point, just wait for CAAF.

By: wow

wow — Fri, 18 Dec 2009 00:03:09 +0000

People who know more than me, has CAAF ever affirmed a CCA finding a law unconstitutional? If not, why would they even bother? En banc at the CCA sounds like an awful waste of tax dollars to me.