Can a CCA take judicial notice?
The Coast Guard CCA says yes, in this sua sponte order issued last month in United States v. Michaels, CGCMS 24449, Docket No. 1352:
On 22 September 2011, Appellant filed his Assignment of Error and Brief with this Court. He asserts that his adjudged sentenced of a bad-conduct discharge and five months confinement is inappropriately disparate from six companion cases, rendering his sentence inappropriately severe as a matter of law. As part of the same filing, Appellant moved to attach three promulgating orders from general and special courts-martial and extracts from the records of trial of three summary courts-martial, averring that they relate to six companion cases originating from the Coast Guard Cutter VENTUROUS. We granted the motion to attach.
…
The information on the six companion cases is limited. We have the substance of the specifications of which the accuseds were convicted for only four cases. We have a summary of the evidence for only two of the cases, both summary courts-martial. This information is not sufficient for us to properly compare the cases. To properly compare them, we believe we should consider the entire records of the cases.
We will take judicial notice of the records of the six cases. Accordingly, it is, by the Court, this 2nd day of February, 2012,
ORDERED:
That the Government shall, within thirty days, provide to the Court four copies of the records of the trials of the six companion cases, and a copy of each to Appellant’s counsel.
(emphasis added)
Alternatively, if a majority of this Court concluded that it was beyond our authority to attach such documents to the record, a remand to the CCA or an order for a DuBay 3 hearing would have been in order — or any alternative mechanism, including judicial notice, which could allow for consideration of the documents.
69 M.J. 104, 111 (C.A.A.F. 2010)(Efron, J., concurring and dissenting in part). And CCAF Rule 30A(b). . . . Not in CGCCA rules. But I believe you will see appellate courts taking judicial notice from time to time.
As a DC in one of those companion cases, I’d say this was a good reason not to plead pre-32, but I disgress.
Here’s my question: on one of the companion cases (not the one I was on), the accused was convicted of multiple charges, including one that required mandatory sex offender registration. This was a huge part of the defense’s sentencing argument, and the members returned with no punishment for a sentence. How does CGCCA balance the factual differences (registration vs no registration) of a collateral consequence that obviously had a huge impact at trial? Do they even attempt to?
http://www.oldsaltblog.com/2011/06/26/u-s-coast-guard-punishes-7-for-sexual-hazing-aboard-cutter-venturous/
N – isn’t the Government permitted to object to a collateral consequence sentencing argument? How long did the Defense go on about the sex offender registration?
I normally see it come in through the unsworn statement, and I’ve yet to see a Judge shut that down.
I usually ask for judicial notice of the DoD regulation regarding sexual offender registration and I have had success in getting it (Captain Stewart was the most recent). I do not believe it is a “collateral” consequence of the conviction. it is a direct consequence that flows from the federal law applicable to a host of Code provisions, identified specifically in a DoD instruction. As most on here know, the sex offender registration is the “gift that keeps on giving” making it nearly impossible for an accused to overcome a conviction where registration is required. That is why most sexual offenders whose convictions are overturned make their first stop the local sheriff’s office to deliver the order of the court overturning the conviction in order to be removed from the registry — a process that is not as easy as it may seem.