The Coast Guard Court has issued this unpublished opinion setting aside a sodomy conviction under Hartman due to the military judge’s failure to examine Lawrence v. Texas‘s impact on the case during the providence inquiry.  United States v. Whitaker, No. 1366 (C.G. Ct. Crim. App. Dec. 12, 2012).  Chief Judge McClelland wrote for herself and Judge John “Isn’t It Havranek” Havranek.  Judge Duignan joined the portion of the opinion setting aside the sodomy conviction but dissented to the remedy adopted by the majority.

3 Responses to “CGCCA applies Hartman again”

  1. Brian Bouffard says:

    Weird.  Had no idea Col Havranek was on the CGCCA.

  2. Ama Goste says:

    How did the MJ miss a decade-old case?

  3. k fischer says:

    Hmmmmmmmm……so a married Servicemember walks into a room with a drunk, sleeping female Servicemember, digitally penetrates her vagina, caresses her breasts, and breaks the lips of her mouth with his penis, and the Government permits him to plead guilty to assault under 128 and consensual sodomy under 125, neither of which require him to register as a sex offender?  Am I missing something here?  Then, the court sets aside the conviction for sodomy because the judge failed to address the military impact?  Wouldn’t the fact that he is married, she’s a fellow Servicemember, and she was asleep, take it out of the Lawrence v. Texas analysis?  
     
    Unless, of course, the whole thing was bunk and he took a plea to guarantee he wouldn’t have to register as a sex offender……..which begs the question, why court martial him at all if you are the Government, and why not fight if you’re the Defense.