CAAF granted review of three issues today:

WHETHER APPELLANT’S CONVICTION FOR INVOLUNTARY MANSLAUGHTER UNDER ARTICLE 119(b)(2), UCMJ, IS LEGALLY INSUFFICIENT BECAUSE (1) IN ACCORDANCE WITH UNITED STATES v. SARGENT, 18 M.J. 331 (C.M.A. 1982), APPELLANT’S DISTRIBUTION OF OXYMORPHONE WAS NOT A CRIME DIRECTLY AFFECTING THE PERSON UNDER ARTICLE 119(b)(2), AND (2) EVEN IF SO, CONGRESS DID NOT INTEND FOR ARTICLE 119(b)(2) TO COVER APPELLANT’S MISCONDUCT.

United States v. Bennitt, __ M.J. __, No. 12-0616/AR (C.A.A.F. Sept. 19, 2012).  (ACCA’s decision in the case was a two-sentence summary affirmance with a footnote.)

I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE FAILED TO SUPPRESS EVIDENCE OF CHILD PORNOGRAPHY DISCOVERED ON APPELLANT’S PERSONAL COMPUTER IN THE COURSE OF AN UNREASONABLE SEARCH CONDUCTED TO FIND CONTRABAND AFTER APPELLANT WAS WOUNDED IN IRAQ AND MEDICALLY EVACUATED TO THE UNITED STATES.

II. WHETHER THE ARMY COURT ERRED IN CREATING A NEW EXCEPTION TO THE FOURTH AMENDMENT WHEN IT HELD THAT THE GOVERNMENT’S SEARCH OF APPELLANT’S PERSONAL COMPUTER WAS REASONABLE BECAUSE THE GOVERNMENT WAS NOT “CERTAIN” OR “ABSOLUTELY CLEAR” THAT IT WOULD BE RETURNED TO THE WOUNDED-WARRIOR APPELLANT.

United States v. Kelly, __ M.J. __, No. 12-0524/AR (C.A.A.F. Sept 19, 2012).  (ACCA’s unpublished opinion in the case is available here.)

I. A LACK OF MENTAL RESPONSIBILITY DEFENSE EXISTS WHEN A MENTALLY DISEASED ACCUSED CANNOT APPRECIATE THE WRONGFULNESS OF HIS CONDUCT. HERE, EXPERTS TESTIFIED THAT APPELLANT’S PARANOID SCHIZOPHRENIA AND SEVERE DELUSIONS CREATED HIS SUBJECTIVE BELIEF THAT STABBING THE VICTIM WAS JUSTIFIED. BUT THE MILITARY JUDGE AND NMCCA ADOPTED AN OBJECTIVE STANDARD FOR “WRONGFULNESS.” WHAT IS THE APPROPRIATE STANDARD IN DETERMINING WHETHER AN ACCUSED CAN APPRECIATE THE WRONGFULNESS OF HIS CONDUCT?

II. UNDER THE FIFTH AMENDMENT, AN ACCUSED’S STATEMENT TO INVESTIGATORS IS ADMISSIBLE ONLY IF IT WAS OBTAINED WITH A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER WHERE THE ACCUSED UNDERSTANDS HIS RIGHTS AND THE CONSEQUENCES OF WAIVING THEM. HERE, EXPERT WITNESSES TESTIFIED THAT APPELLANT COULD NOT UNDERSTAND HIS RIGHTS OR THE CONSEQUENCES OF WAIVING THEM BECAUSE OF HIS SEVERE MENTAL DISEASE. DID THE MILITARY JUDGE ERR BY ADMITTING THE STATEMENT?

United States v. Mott, __ M.J. __, No. 12-0604/NA (C.A.A.F. Sept. 19, 2012).  (NMCCA’s unpublished opinion in the case is available here.)

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