CAAF granted review of two cases yesterday. First is United States v. Oliver, No. 11-0089/AR, in which the granted issues is “WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT THE FINDING OF GUILTY TO DESERTION.” ACCA’s decision was a summary per curiam affirmance. United States v. Oliver, No. ARMY 20091109 (A. Ct. Crim. App. Sept. 9, 2010). The petition was filed on 18 October; CAAF continues to rocket through its petition docket.
Second is United States v. Romanosky, No. 11-0046/NA, with this granted issue:
IN ORDER TO CONVICT AN ACCUSED FOR AGGRAVATED SEXUAL ASSAULT UNDER ARTICLE 120(c), THE GOVERNMENT MUST PROVE THAT THE VICTIM WAS INCAPACITATED OR SUBSTANTIALLY INCAPABLE OF APPRAISING THE NATURE OF THE SEXUAL ACT. ARTICLE 120 OF THE UCMJ PROVIDES AN AFFIRMATIVE DEFENSE IF THE ACCUSED CAN SHOW, BY A PREPONDERANCE OF THE EVIDENCE, THAT THE VICTIM USED WORDS OR OVERT ACTS INDICATING AGREEMENT TO THE SEXUAL CONDUCT AT ISSUE AND WAS COMPETENT. THIS STATUTORY SCHEME VIOLATES DUE PROCESS OF LAW BY PLACING A BURDEN ON THE ACCUSED TO DISPROVE AN ELEMENT OF THE GOVERNMENT’S CASE.
CAAF ordered that no briefs be filed, so it appears to be treating this case as a Medina/Prather trailer. NMCCA’s unpublished decision in the case is available here. United States v. Romanosky, No. NMCCA 20100009 (N-M. Ct. Crim. App. Aug. 12, 2010).
In other CAAF trailer news, on Wednesday, CAAF denied not only a motion to stay proceedings, but also the petition in an Article 62 drug testing report case. United States v. Borgman, No. 11-6001/AF. The order stated that the denial was “without prejudice to raising the issues asserted during the course of normal appellate review.”