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AFCCA’s unpublished decision in the case is available here.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 NMCCA’s unpublished decision in Robinson is available here.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 The Air Force Court’s unpublished decision in the case is available here.