NMCCA dismisses a conviction for consensual homosexual sodomy in United States v. Stratton. It’s unpublished but worth the read.
- A discussion and reiteration of a “private” location is . . . The discussion may be fruitful beyond an Article 125 case.
- A discussion of and that “the military judge’s ruling that the general disruption to the unit [of the investigation of the charges] implicated the third Marcum prong is untenable (emphasis added).
- When a TC proffers something to the court, double-tap that for accuracy, and vice-versa.
- Broad talismanic incantations are as unhelpful in analyzing Marcum factors as they are in Mil. R. Evid. 404(b), situations.
- The court avoided the issue of whether Marcum “effectively incorporated new elements into the Article 125, UCMJ, charge and that these new elements should have been properly plead and submitted to the trier of fact. Essentially, the appellant argues that the Marcum factors are questions of fact to be answered by the trier of fact.” Slip op. at 5, 6 n.1.
- The court avoided the issue:
I. POST-LAWRENCE, SODOMY IS NOT A CRIME UNLESS THERE ARE ADDITIONAL CRIMINAL ELEMENTS THAT FURTHER A LEGITIMATE STATE INTEREST. OVER DEFENSE OBJECTION, THE MILITARY JUDGE INSTRUCTED THE MEMBERS THAT SODOMY WAS A LESSER INCLDUED OFFENSE OF THE CHARGED CRIME OF FORCIBLE SODOMY. THE MEMBERS THEN RETURNED A VERDICT OF NOT GUILTY TO FORCIBLE SODOMY, BUT GUILTY TO SODOMY. THE THEORY OF PROSECUTION FOR SODOMY WAS BASED ON ADDITIONAL FACTS ALLEGED BY THE GOVERNMENT AFTER THE TRIAL BEGAN. THESE FACTS WERE: (1) NOT ELEMENTS DEFINED BY CONGRESS UNDER ARTICLE 125, UCMJ, (2) NOT ALLEGED ON THE CHARGE SHEET; AND (3) NOT SUBMITTED TO THE MEMBERS AND PROVED BEYOND A REASONABLE DOUBT. IS APPELLANT’S CONVICTION FOR CONSENSUAL SODOMY UNCONSTITUTIONAL IN LIGHT OF THESE DUE PROCESS VIOLATIONS?