Two of the most contentious areas in current military appellate practice are challenges to the new Article 120 and application of Melendez-Diaz to urinalysis results.  CAAF today granted review of cases raising each of these issues, plus another in which it remanded for a DuBay hearing.

In United States v. Prather, No. 10-0345/AF, the granted issue is:

WHETHER THE ELIMINATION OF THE ELEMENT OF LACK OF CONSENT COMBINED WITH THE SHIFTING OF THE BURDEN TO PROVE CONSENT, BY A PREPONDERANCE OF THE EVIDENCE, TO THE ACCUSED IN ORDER TO RAISE AN AFFIRMATIVE DEFENSE TO AGGRAVATED SEXUAL ASSAULT UNDER ARTICLE 120, UCMJ, WHERE APPELLANT ALLEGEDLY ENGAGED IN SEXUAL INTERCOURSE WITH A PERSON WHO WAS SUBSTANTIALLY INCAPACITATED, IS A VIOLATION OF APPELLANT’S RIGHT TO DUE PROCESS UNDER THE 5TH AMENDMENT OF THE U.S. CONSTITUTION.

AFCCA’s unpublished decision in the case is available here.  The granted issue is similar to the issue that CAAF granted in the funky cold Medina case, No. 10-0262/AF, on 30 March, which we noted here.  CAAF ordered that briefs be filed in Prather.

CAAF today also granted review of this Melendez-Diaz issue:

WHETHER, IN LIGHT OF MELENDEZ-DIAZ v. MASSACHUSETTS, ___ U.S. ___, 129 S.CT. 2527 (2009), THE LOWER COURT ERRED WHEN IT HELD THAT THE ADMISSION OF THE NAVY DRUG SCREENING LABORATORY’S URINALYSIS DOCUMENTS DID NOT VIOLATE APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

United States v. Robinson, No. 10-0319/MC.  But CAAF ordered that no briefs be filed in Robinson.  Of course, CAAF had already invited all of the appellate divisions to file briefs concerning Melendez-Diaz in the ongoing Blazier case.  NMCCA’s unpublished decision in Robinson is available here.

Finally, in United States v. Long, No. 10-0265/AF, CAAF granted review of two issues today:

I.  Whether the Air Force Court of Criminal Appeals erred in failing to remand this case for a DuBay hearing.

II.  Whether Appellant was denied due process because assurances of Air Force officials provided him with de facto immunity from prosecution.

CAAF set aside the Air Force Court’s decision and remanded the case for a DuBay hearing, followed by another review by AFCCA.  The Air Force Court’s unpublished decision in the case is available here.

3 Responses to “Grant with briefs, grant with no briefs, grant and remand”

  1. Dew_Process says:

    With respect to Robinson, unfortunately it was IAC – only for a different reason – not having a Defense Forensic Toxicologist testify that the testing that the military does for cocaine, i.e., looking for benzoylecgonine [BZE], is forensically bogus.

    A little known part of U.S. v. Green, 55 MJ 386 (2001), obliquely noted this; the government’s premise in cocaine cases is that BZE is a true metabolite of cocaine and ergo, if your urine has BZE in it, you have ingested cocaine. The government expert in Green admitted that BZE could also be produced in urine via autohydrolysis, i.e., just sprinkle some cocaine into the urine sample [or via contamination] and you get BZE without any metabolic / biotransformation actions. Thus, from a biochemistry perspective, BZE is not a “true” metabolite.

    Furthermore, BZE is commercially available, and if you spike a drink with BZE, it does NOT break down and will show up as BZE in your urine, even though you weren’t within 10 miles of cocaine.

    The Navy at least has known about this for at least 10 years because I had the then head of the Navy DTL in Jacksonville, a PhD toxicologist testify to the above. But, because it’s a really cheap test to run, comparatively speaking, DoD still runs with it.

    As a QC device, the Navy’s DTL in San Diego, studied this and the chemists there, suggested changing the testing for cocaine to avoid this issue, to avail. See, Klette et al., Simultaneous GC-MS Analysis of Meta- and Para-Hydroxybenzoylecgocnine and Norbenzoylecgocnine: A Secondary Method To Corroborate Cocaine Ingestion Using Nonhydrolic Metabolites, 24 J.Anal.Toxicology 482 (2000). The authors were Navy DTL experts.

  2. Anon says:

    The BZE test is sufficient, regardless of the “red herring” of autohydrolysis. CMA already decided this issue in 1992 with United States v. Thompson, 34 MJ 287 (CMA 1992). Highly unlikely to be IAC. Calling it forensically bogus is also a stretch.

  3. Anonymous says:

    Well, you both could be right. The BZE test could be insufficient, but without sufficient clarity or strength of scientific consensus on that insufficiency to make a failure to challenge based on it not IAC.

    I’d also say that even if there are other ways to get BZE that does not make a test for BZE “forensically bogus” it goes to the weight of the evidence.

    One then has to ask, how likely is it that this person got BZE from cocaine and how likely is it that he got it from a spiked drink. Was he out drinking before the test? Why would anyone spike his drink? What is the likelihood that a random sample would have cocaine sprinkled into it?

    I don’t think that means the test is useless or invalid per se, it simply gives some ammo to the defense to argue that it isn’t enough for BRD.