Here’s a link to CAAF’s decision in United States v. Hartman, __ M.J. __, No. 10-0291/NA (C.A.A.F. March 15, 2011).  Chief Judge Effron wrote for a unanimous court.  CAAF reversed NMCCA and set aside a sodomy conviction, holding that the military judge erred in this guilty plea case by not establishing Appellant’s understanding of how his factual statements during the providence inquiry related to the Marcum factors and ensuring  that the accused understood the distinctions that Lawrence and Marcum establish between protected sexual acts and sexual acts that can be criminalized.

7 Responses to “New CAAF opinion setting aside sodomy conviction”

  1. Anonymous Air Force Appellate Defense Lawyer says:

    Just what I was hoping for: More detailed Care inquiries in sodomy cases.

  2. Bill C says:

    Don’t lie. It appeals to your prurient interests.

  3. Anonymous says:

    So, does a Hartman inquiry require a MJ to reference Marcum and Lawrence by name to an accused, or does discussing the principles of each suffice?

  4. Rob Klant says:

    I’ve also wondered how the Lawrence/Marcum factors should be addressed in a contested members trial.

    Are they determined by the judge as a matter of law? Or, is it a question for the members? Is some sort of instruction required, even if the judge makes the determination (a la “lawfulness” under Art. 92)?

  5. John Harwood says:

    Great question, Rob. I think a rational argument could be made for labeling that determination either a question of fact (for the members) or a question of law (for the judge). Could it be analogized to voluntariness, where the judge makes a legal ruling on the voluntariness of a confession as a matter of law, but then also instructs the members that they may consider the voluntariness of the confession when determining what weight and significance to give to it? That instruction basically gives DC two bites at the apple. I think a reasonable argument could be made that the same should be required in an Art. 125 prosecution.

    Either way, even if the judge decided it was a matter of law and decided against me on the pre-trial motion, I’d be arguing jury nullification as much as the judge would let me get away with.

    As an aside, why in the world didn’t they charge indecent acts?

  6. Cheap Seats says:

    J H – They did charge indecent acts. As part of the PTA, the Accused pled guilty to the LIO of sodomy (was charged as forcible), the indecent acts and forcible specs were dismissed. Avoided the trial, the “victim” consented to the deal, and the accused didn’t have to register as an offender.

  7. Frank Rosenblatt says:

    Bravo, CAAF!