CAAF’s Medina decision, 69 M.J> 462 (C.A.A.F. 2011),  prevented Prather from having any widespread effect.  But now CAAF has granted review of a a case with Prather cited in two of the granted issues.  Here are the granted issues in United States v. Stewart:

 I.   UNDER UNITED STATES v. PRATHER, IS IT LEGALLY POSSIBLE FOR THE PROSECUTION TO DISPROVE AN AFFIRMATIVE DEFENSE BEYOND A REASONABLE DOUBT ONCE THE MILITARY JUDGE HAS DETERMINED THAT THE DEFENSE HAS BEEN PROVED BY A PREPONDERANCE OF THE EVIDENCE AND, IF NOT, IS THE MILITARY JUDGE REQUIRED TO ENTER A FINDING OF NOT GUILTY IN SUCH A CASE UNDER RCM 917?

II.    WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING THE EVIDENCE FACTUALLY SUFFICIENT BEYOND A REASONABLE DOUBT TO SUSTAIN APPELLANT’S CONVICTION UNDER SPECIFICATION 2 BECAUSE IN DOING SO IT (1) VIOLATED THE PRATHER LEGAL-IMPOSSIBILITY PRINCIPLE AND (2) IMPERMISSIBLY FOUND AS FACTS ALLEGATIONS THAT HE WAS FOUND NOT GUILTY OF IN SPECIFICATION 1.

III.   WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY REQUIRING THE DEFENSE TO PRESENT EVIDENCE ON THE DEFENSE OF CONSENT AT AN ARTICLE 39(a) SESSION PRIOR TO TRIAL.

United States v. Stewart, __ M.J. __, No.  1-0440/MC (C.A.A.F. Aug. 10, 2011) (order granting review).  NMCCA’s unpublished decision in the case is available hereUnited States v. Stewart, No. NMCCA 201000021 (N-M. Ct. Crim. App. Jan. 31, 2011).

3 Responses to “A Prather trailer”

  1. Marcus Fulton says:

    An interesting case. The MJ held an Article 39(a) to determine as an interlocutory matter whether the accused had established the affirmative defenses by a perponderance. Although CCA found this to be error, when I first read the new Art. 120 I remember thinking that this was the most likely of all the unlikely possible ways to give effect to the language in the statute. If I had to guess at the legislative intent (and if “no intent” weren’t a permissible choice) I would have guessed the same way as this MJ.

  2. stewie says:

    I like the distinction between substantially incapable… and substantial incapacitation, they are not necessarily the same things, and the affirmative defense only uses the language of the former (in excluding the ability to utilize consent).

    Next a query: the law requires the defense to meet a certain burden wrt affirmative defense of consent, shouldn’t the panel be told of that burden and if the defense has met that burden? Are we sure it’s the judge that should decide that burden or the panel?

    Hiding it that first hurdle from the panel may solve the connundrum of the panel finding lack of consent proven beyond a reasonable doubt when they found/it was found to be present by a preponderance, but it doesn’t solve the issue that at the end of the day, either these issues are determined by the judge or the factfinder.

    It seems somewhat…slick…to have the judge determine the first burden, the panel ignorant of that determination, and then the panel determine the second. It is as if we have to hide part of the law from the panel.

  3. Dew_Process says:

    Stew – take your argument one step further, do you think there’s an issue under Ring v. Arizona, 536 U.S. 584 (2002)?

    CAAF could avoid issues I & II, by deciding that Issue III, amounted to an unconstitutional “burden shifting.”