Code 46 today filed this motion asking CAAF to stay enforcement of NMCCA’s writ in Lawanson pending the Government’s writ appeal.

29 Responses to “Lawanson: the Empire strikes back”

  1. Bill C says:

    Quick read: He is guilty, so you should not let this happen.  That is basically it.  

  2. Charlie Gittins says:

    No Bill, I think it is worse than that.  Is the guy in PTC?  If so, how come the Government didn’t mention that?  It would seem to me that is a pretty heavy balance on his side, given that he was discharged, according to the NMCCA.

    How is it that justice can only prevail if the only the Navy gets to prosecute?  If it happened on base and whether or not he has been discharged, there is an Article III district court that can surely handle it, if it is really such a meritorious case. 

    I am not so sure the Government really can claim that they are going to prevail on a writ appeal, but I do agree they are alleging confession to try to convince the court to “do the right thing.”

  3. Bill C says:

    I didn’t see anything re PTC either way, so I don’t know. But you are right.  As I often see, the “government” is confusing the “Navy” with the “government.”  If this guy is not court-martialed, the “government” can still come after him, as this happened on base.  So the government really loses nothing if he is cut loose.  But all they want to say is “he confessed, so let us court-martial him, regardless of the law.” 

  4. Zachary Spilman says:

    The Government and the public interest at large will be irreparably harmed without a stay in this case. Without a stay ordered by this Court, it is clear that the Petitioner will seek to be immediately discharged from the Naval service and the Government will lose the jurisdiction to try a case of sexual assault where the Petitioner has confessed to the crime. Nothing in the record demonstrates prejudice to the Petitioner that would occur if this stay were granted.

    Wow.

  5. Just Sayin' says:

    I have been made dumber by reading that.  Is this what passes for appellate work these days?  Do they not understand that “likeliness of success” refers to their likeliness of success in their appeal, which is procedural, not likeliness of success at trial, so the alleged confession is moot in this context?
    Also, regarding the irreparable harm to the government…the New London Courthouse is 10 miles away.  It has been continuously trying criminal cases since the 18th century.  Just Sayin’…

  6. Casual Reader says:

    Actually the base is less than 6 miles from the original superior court.  It has been functioning since the 18th century, but there was a pause when Benedict Arnold burned down the city. 
    Regarding the government argument, you don’t get to the merits in any court unless you have jurisdiction.  And the harm is not irreparable.  I checked their web site; New London Superior Court has a very active criminal docket.  Many of the cases are various forms of sexual assault.

  7. Some DC says:

    “The Government and the public interest at large will be irreparably harmed without a stay in this case. Without a stay ordered by this Court, it is clear that the Petitioner will seek to be immediately discharged from the Naval service and the Government will lose the jurisdiction to try a case of sexual assault where the Petitioner has confessed to the crime. Nothing in the record demonstrates prejudice to the Petitioner that would occur if this stay were granted.”

    It seems like the  petitioner (though he isn’t the petitioner really) doesn’t need to seek to be immediately discharged.  He is already discharged.  He has nothing to seek.  Also,  how can the gov’t, with a straight face, say the accused isn’t harmed?  He is discharged from the service yet has to stay in some weird status while the gov’t unscrews his case?  That isn’t prejudice?  And “nothing in the record” come on!  What record could their be in a case where the accused moves to dismiss on jurisdiction?  I assume it is a pretrial motion so there is no record.  Why would the accused need to show ANY prejudice? 
     

  8. TheDailyJAG says:

    All I can say: Wow. This motion screams, “I don’t care how bad the argument is! File it anyway!”

  9. Anonymous Air Force Senior Defense Counsel with the initials NM says:

    Yet another example of the government zealously representing itself

  10. Just Sayin' says:

    It almost sounds like they want the appellate court to apply an equitable relief to their jurisdiction fail.  Which, with some Navy judges would be a good strategy since you know…jurisdiction and procedure are really just guidelines…

  11. TheDailyJAG says:

    Yeah, the code is more what you’d call “guidelines” than actual rules.  If the government knew the appellate courts were going to be so dogmatic about personal jurisdiction, I’m sure they would have paid more attention to it.  This military stuff is all so confusing . . . I mean, I give orders every day and nobody follows them.  How am I suppose to know which “rule” is important?  I’m not omniscient.  And it’s not like everybody thinks personal jurisdiction is important.  After all the trial judge was OK with close enough.

    Which sort of makes me wonder: How did the trial judge figure that discharged on the 1st plus charges preferred on the 2nd equals a maybe? 

    And did the 32 Officer not point this problem out in his or her report?  “Counsel, why isn’t the accused in the uniform of the day?”  “Sir, he’s not in the military anymore.”  “Wait. What?”  “He was discharged on 1 February; here’s his DD-214.”  “Um…really? The charges weren’t preferred until the 2nd of February…..er…..We might need to take a break before this gets started.  Defense, feel free to go get coffee or a donut or something.”

  12. Zachary Spilman says:

    About that Motion to Stay…

    Throughout the entire five-month investigative period, neither the Commanding Officer nor the SJA knew that the Personnel Support Detachment (PSD) had previously issued Petitioner a self-executing DD-214 with a separation date of February 1, 2012.

    Seriously? After five months?!

    On the morning of February 1, 2012, Petitioner reported to NCIS. (Appellate Ex. IV at 108.) After waiving his Article 31 (b) rights, Petitioner admitted that he continued to have sex with Ms. NG after she said “stop” and attempted to push him off of her.

    In what way is this relevant to the matter of jurisdiction? More to the point, what exactly is the Government trying to imply? See United States v. Simpson, 58 M.J. 368, 370 (C.A.A.F. 2003) (discussing “unfair pretrial publicity and unlawful command influence”). See also “The Invisible War”: uninformed, dishonest, or both?, “The Invisible War”: uninformed, dishonest, or both?-Part II?, and More on “The Invisible War”

    As a side note, this case presents a fantastic opportunity for CAAF to develop a doctrine of unlawful command influence of appellate courts. See, for example, United States v. Harvey, 64 M.J. 13, 17 (C.A.A.F. 2006) (“a prime motivation for establishing a civilian Court of Military Appeals was to erect a further bulwark against impermissible command influence.”).

    Back to the Motion:

    A stay is appropriate in this case because the Government has a strong likelihood of prevailing on the merits of the case considering the Petitioner’s confession to the crime on February 1, 2012.

    The NMCCA found “that the petitioner was validly discharged on 1 February 2012 and he did not constructively reenlist thereafter.” Lawanson v. United States, No. NMCCA 20100187, slip op. at 15 (N-M.Ct.Crim.App. Aug. 31, 2012). Again I wonder, in what way does the “Petitioner’s confession” matter?

    the public’s interest lies decidedly with the prosecution of a sexual assault case which occurred in the barracks aboard a naval installation.

    Wait a minute. “There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution.” United States v. Ali, 71 M.J. 256, slip op. at 31 (C.A.A.F. Jul. 18, 2012) (quoting United States ex rel. Toth v. Quarles, 350 U.S. 11, 22 (1955)).

    How quickly that’s forgotten…

  13. Ex TC on sabbatical says:

    So it happened on the base so the “Govt” can try him out in town says the defense. Then let the Feds try it and have him possibly meet the 800 pound gorilla of the Guidelines and a fed judge for sentencing. members are often forgiving in sentencing and the guidelines are not. Sometimes you have to be careful what you ask for. I see some discussion of the state handling the case but if it happened on the base, I would argue that the Feds should take it.

    As someone who has explained to clients before “good news, you case is dismissed, bad news, the marshals are here” you have to be wary of what’s also out there.

  14. Some DC says:

    Ex TC – DoJ wouldn’t touch a case like this with a 10 foot pole.  They ONLY take cases they are guaranteed victory on and this isn’t one of them. That leave the DA who has to slog through the mine field of concurrent jurisdiction, not worth the effort.  And, Federal Sentencing Guidelines are only advisory and not mandatory. Federal judges hated them and most look at them ith distain so they rarely adopt them

  15. Zachary Spilman says:

    Then let the Feds try it and have him possibly meet the 800 pound gorilla of the Guidelines and a fed judge for sentencing.

    Who says they’ll take it? Consider the facts as stated in the CCA’s action on the writ petition:

    In September of 2011, “NG” reported to Naval Criminal Investigative Service (NCIS) that the petitioner had raped her in his barracks room on board Naval Submarine Base (NAVSUBASE) New London. Although NG only knew the petitioner by a nickname, NCIS initiated an investigation which, by mid-October, identified the petitioner as NG’s alleged assailant.

    No rank/rate for “NG,” so I’ll assume she is a civilian. “[I]n his barracks room on board [a sub base],” is a key term.

    The SJA, LT F, was under the impression that CAPT D had already decided to place the petitioner on legal hold, prefer charges, and direct an Article 32 investigation. However, in mid-January CAPT D was still undecided and wanted to wait until after this final interview. As he later explained at the motion session:

    the NCIS investigation had not been ‘finalized’ and . . . everything we had up until then was leaving me at just a 50-50 on whether he was guilty

    In short, the Petitioner’s leadership believed the allegation was as likely false as it was true.

    On the morning of 1 February 2012, NCIS interviewed the petitioner. During the interview, the petitioner admitted to having sexual intercourse with NG in his barracks room, but asserted that the intercourse was consensual.

    The Government (in its Motion for a Stay) characterizes this as a “confession to the crime” of sexual assault. 

    Since about a year has passed since the report to NCIS, and over seven months since the “confession,” I wonder if the cognizant US Attorney has already declined to prosecute… particularly since I’m not aware of a federal statute analogous to the Art. 120 (2007) prohibitions on sexual activity with a person who is substantially incapacitated or substantially incapable…

  16. Just Sayin' says:

    EX TC, what flavor is the kool aid these days?

  17. Some DC says:

    Today’s flavor is Legitimate Grape.

  18. Just Sayin' says:

    you owe me an new coffee and a new keyboard for that.

  19. Chuck Purnell says:

    It seems to me that describing the accused’s admission to a consensual sexual act as a “confession” to committing sexual assault is a gross mischaracterization.

  20. Just Sayin' says:

    I believe it would more accurately be described as an admission, but then, very few JAGs I knew understood the difference between admission and confession.

  21. k fischer says:

    Just Sayin’,

    Obviously, you were on sick call last April during the Sexual Assault awareness briefing.  Here’s all you need to know:

    Accused’s Admission to consensual sex + allegation by victim that sex was not consensual = Confession of Sexual Assault

  22. Just Sayin' says:

    is that how it works these days? my bad.

  23. Charlie Gittins says:

    If, as is suggested here, the Government appellate counsel characterized a claim by the accused that he had consensual sex as a “confession” to sexual assault, I am thinking that in light of the Partington case, the NMCCA needs to send the case to Rules Counsel a la the Partington debacle if they have any integrity at all.   Just sayin!  

  24. Just Sayin' says:

    You should know by now that the Rules Counsel only exists to punish attorneys who don’t carry water for OJAG.  The TC in this case is clearly advancing the interests of the government so ethics are suspended.
     

  25. Cloudesley Shovell says:

    I nominate Some DC for comment of the year.  “Legitimate grape” is a masterpiece of wit.

  26. Some DC says:

    I shall not seek, and I will not accept, the nomination of my party for comment of the year.  

  27. Casual Reader says:

    Just got back from work.  I am so sorry, I missed the “barracks” reference.  There is no civilian jurisdiction.  See how easy that was.

  28. Some DC says:

    Having it happen in the barracks doesn’t divest the state nor the feds of jurisdiction.  Each military installation is different and this barracks could be on concurrent property.  I don’t know one way or another.  However, having the incident occur in the barracks doesn’t divest the US of jurisdiction. 
     

  29. Dew_Process says:

    So, why isn’t the Accused seeking habeas relief??  If he was discharged, Toth resolves the entire military justice mess – squeeze the grape and make someone whine!