Here’s a link to an interesting unpublished NMCCA opnion setting aside an Article 120 conviction because the military judge failed to sua sponte instruct on the affirmative defense of consent.  United States v. Jones, No. NMCCA 200900679 (N-M. Ct. Crim. App. Aug. 17, 2010) (per curiam).

8 Responses to “NMCCA unpublished opinion setting aside Article 120 conviction”

  1. Cheap Seats says:

    Rape? The title is misleading. This was a conviction for abusive sexual contact.

  2. Dwight Sullivan says:

    Thanks for the correction, Cheap Seats!

  3. RY says:

    Would anyone be surprised to see certification in this case? Looks like the 2010 CAAF term could be the year of sex and drugs (several Art 120 cases and Blazier).

  4. huh says:

    Now we just need a 133 prosecution for rocking too hard.

  5. Southern Defense Counsel says:

    Anyone know why the defense didn’t ask for the instruction? Seems awfully dangerous to sandbag if that’s what they were doing.

  6. FormerTC says:

    Unbpublished? I thought NMCCA was moving away from the trend of 2-3 years ago.

  7. anonymous says:

    This opinion was issued at what the court considers the lowest level of interest – per curiam. We do not know who authored the opinion, only which panel issued the opinion. Given the high interest in Art. 120, and the fact the opinion provides guidance to the judiciary and practitioners in an area of high interest, I would think this opinion should have been released as an authored unpublished opinion.

  8. Charles Gittins says:

    All I can say is that defense counsel was asleep at the switch and the Military Judge did not distinguish himself with his understanding of the law. It’s too bad the young kid had to go to jail because two lawyers sitting in the courtroom didn’t have any clue about the law.