Other than some Serianne-related housekeeping, (edit: and Col Sullivan’s coverage of the Brissette Article 62 appeal), it’s been a while since we’ve written anything about the Courts of Criminal Appeals. However, they’ve been busy:

The Air Force CCA finds that specifications alleging indecent acts with a child under Article 134, that do not allege a terminal element, provide sufficient notice of criminality, and affirms. The court notes that the appellant did not object to the specifications, did not object to the trial military judge’s instructions regarding the terminal elements, and concedes that specifications challenged for the first time on appeal will be liberally construed in favor of validity. United States v. Wilson, No. 37486 (A. F. Ct. Crim. App., December 15, 2011).

The Army CCA, while evaluating the factual sufficiency of a conviction for violation of a lawful general regulation that prohibited relationships between permanent party personnel and those undergoing initial entry training (IET), the court noted that the accused was a MOS trainee – neither permanent party nor undergoing IET. So, perhaps in the spirit of the season, it rules: “Equating MOS trainees to permanent party – grandmothers to toads?” United States v. Jones, No. 20090401 (A. Ct. Crim. App., December 14, 2011).

The Coast Guard CCA makes quick work of “anomalies” in the record and affirms, despite “ambiguous” findings on one charge, “no announcement” of findings to the specification in another, “irregular renditions of pleas,” a confusing promulgating order, and a charge sheet with a specification (to which the appellant pleaded guilty of a LIO) lined out by the trial counsel with the notation “withdrawn and dismissed without prejudice.” United States v. Barker, No. 1340 (C. G. Ct. Crim. App., November 17, 2011).

The Navy-Marine Corps CCA, summarily affirming findings and sentence, drew a concurring opinion that appears to be a clemency recommendation. Noting the operational history of the appellant (a 12-year Staff Sergeant convicted, pursuant to his pleas, of a series of relatively-small larcenies from the Marine Corps Exchange), including his receipt of a Purple Heart, Judge Harris wonders if faster action by the Exchange and the command wouldn’t have avoided the “truly sad” end of the appellant’s career. United States v. Booker, No. 201100432 (N-M Ct. Crim. App., December 13, 2011).

3 Responses to “News from the Service Courts”

  1. Phil Cave says:

    While I tend to agree with Judge Booker on the sentence appropriateness, isn’t the idea about the “potential return abuser” similar to what Bradley Manning is raising as part of his case, blaming the victim?

  2. Atticus says:

    I don’t see the concurring opinion by Judge Harris to be a clemency recommendation.  It’s a good example of judicial restraint, which is all too often missing.  He notes the “sad” facts of the case, but in the final paragraph he restates the controlling precedent and follows it. 

  3. k fischer says:

    Phil,

    This is blaming the victim:

    Gunnery Sgt. HARTMAN
         Private Pyle, if there is one thing in this
         world that I hate, it is an unlocked footlocker!
         You know that, don’t you?
    PYLE
         Sir, yes, sir!
    HARTMAN
         If it wasn’t for ****heads like you, there
         wouldn’t be any thievery in this world, would
         there?
    PYLE
         Sir, no, sir!

    But, that logic does make sense, in a mitigating kind of way, doesn’t it?  Too bad Judge Harris isn’t an ACCA judge.  That is, if Mr. Coombs Article 10 motion finds no success.

    So, I find the ACCA opinion out of Huachuca very interesting, US v. Jones.  As I was reading it, I thought, “Six months and a BCD for adultery and a 350-6 violation?  Life as a TC must be quite boring over at the interrogation school.”  Then, when I read the facts, I thought, “Jone’s is lucky he didn’t get pinched for sexual assault.”  Not that I thought there was a viable conviction there, as it sounds like she missed her husband while she was at AIT, got drunk while working at Oktoberfest, made a pass at appellant, then had sex in the parking lot outside the Buffalo Wild Wings (the makings of a typical date at AIT), despite her testimony that she was “in and out” of consciousness.

    Then, the footnotes told the rest of the story: Apparently the military judge said in a bridge the gap that he “SHOULD HAVE been charged with sexual asault.”  That explains the harsh punishment on a couple of stupid petty charges.  Glad to see ACCA making things right. 

    Also, glad to know which way this particular judge leans on sexual assault prosecutions if I’m ever in front of him.  I give him credit for acquitting appellant on at least 4 separate specifications, as there were at least 5 charges one having two specs, but it sounds like he could be a 3d chair trial counsel on sexual assault offenses. it strongly appears that he at least sentenced the appellant for a reason other than the two charges he thought he made stick.  Hopefully, CAAF does not reverse.

    Here’s my question: did the complaining witness get an Article 15 for adultery, as well?  I will wager $20 that nothing happened to her.  Probably started out as a rape accusation that turned into an adultery case after the Article 32.  We certainly wouldn’t want to victimize the victim, would we?