NMCCA has issued this interesting unpublished decision directing that the charges and specifications be dismissed because the accused was validly discharged and did not thereafter voluntarily submit to military jurisdiction.  Lawanson v. United States, No. NMCCA 20100187 (N-M. Ct. Crim. App. Aug. 31, 2012).  Judge Ward wrote for a unanimous panel.

18 Responses to “NMCCA issues writ of mandamus kicking prosecution on personal jurisdiction grounds”

  1. John Harwood says:

    Hallelujah!  It’s refreshing to see a CCA actually hold the government to the requirements of Art 2.  After US v Webb, I was beginning to wonder if there was any case where jurisdiction wouldn’t attach.

  2. Cloudesley Shovell says:

    A very refreshing opinion, indeed.  It should be interesting to see how CAAF approaches the issues in the event of a gov’t appeal of this decision.
     

  3. Eugene.fidell@yale.edu says:

    Why unpublished?

  4. Just Sayin' says:

    Is anything going to be done to the SJA for illegally “advising” the accused, and engaging in unlawful confinement?
     
    Bottom line, this guy should have been put on legal hold the second he was under investigation, and the MJ’s holdings in this case smack of outcome driven jurisprudence.  But given some of the personalities, I’m not surprised.
     
     

  5. stewie says:

    I assume if this situation had happened after a valid preferral there might have been a different result?
    Obviously a preferral after discharge isn’t valid, but preferral prior to discharge is supposed to act to toll discharge is it not?

  6. Bill C says:

    Stewie: I know that is the rule in the Army. Not sure about Navy or AF. 

  7. Zachary Spilman says:

    Presumably it’s the rule everywhere… RCM 202:

    (c) Attachment of jurisdiction over the person.

    (1) In general. Court-martial jurisdiction attaches over a person when action with a view to trial of that person is taken. Once court-martial jurisdiction over a person attaches, such jurisdiction shall continue for all purposes of trial, sentence, and punishment, notwithstanding the expiration of that person’s term of service or other period in which that person was subject to the code or trial by court-martial. When jurisdiction attaches over a servicemember on active duty, the servicemember may be held on active duty over objection pending disposition of any offense for which held and shall remain subject to the code during the entire period.

    (2) Procedure. Actions by which court-martial jurisdiction attaches include: apprehension; imposition of restraint, such as restriction, arrest, or confinement; and preferral of charges.

  8. Bill C says:

    My bad. I knew that AR 27-10 covered it. Forgot about RCM 202.  Thanks.

  9. Anon says:

    Stewie, Zach, even if jurisdiction attaches under RCM 202 by preferral, etc., it can still be lost by a valid discharge. See Smith v. Vanderbush, 47 M.J. 56 (CAAF 1997).

  10. Atticus says:

    I wonder if the CT authorities have concurrent jurisdiction over the sub base.  Most state codes make prosecuting sexual assault easier than the UCMJ does.  The cognizant U.S. Attorney would also have jurisdiction unless jeopardy attached.

  11. Atticus says:

    18  U.S.C. 2241-2242

    Start shopping it COMNAVSUBASE. 

  12. Just Sayin' says:

    Great.  And when the DOJ fails to take the case, maybe we can have another documentary on how the DOJ is waging a silent war against sexual trauma victims.

  13. Atticus says:

    I just think it’s ironic that we are cheering over a situation where the accused got his case thrown out of the one system that is probably the most friendly to him…..

  14. Bill C says:

    Atticus: I think it depends on the facts. Where I practice, these types of cases are rarely prosecuted outside of the military.  Most local DA’s or US Attorneys won’t touch them. So if there is no CM jurisdiction, he may well walk.

  15. Just Sayin' says:

    while I would agree that “in general” the CM system is more friendly to the accused, the outcome based and over politicized nature of military sexual assault throws a bit of a monkey wrench in that assessment.
    This case is a perfect example of it.  The trial judge was doing mental gymnastics to not dismiss. (e.g. “constructive enlistment”).  Do you really think that would have happened if this was a BAH fraud case or a simple barracks larceny?

  16. k fischer says:

    Atticus,

    It is getting far more difficult when the members on the panels are taught every April that a female who has one drink is too drunk to consent, that false allegations are extremely rare, and continuing a sexual relationship with the accused is simply counterintuitive victim behavior.  Every civilian jurisdiction is different, though, but I find the civilians easier to deal with on uncorroborated cases.

    ksf

  17. Ex TC says:

    Do people really think that because of really bad, boring and most likely not paid much attention to training on sexual assault, members throw out their common sense, experience, maturity, education, knowledge of the ways of the world and oath to follow the law and hold the Govt to PBRD? Seriously? You think the average member of the armed forces is that stupid, niave, etc….  With all the acquitals on sex assaults, I’d say not.  If the training is overcoming all their worldly faculties, then the Govt should create BAH fraud training, theft training…..  Give me a break. Members panels are the best chance an accused ever have. I’d bet most fed and state accused’s would dream of the qualities of most members panels we have vice what they get.  

  18. stewie says:

    Anon, ah yes but cf. US v. Williams, 53 MJ 316 (CAAF 2000).