CAAF granted review of three cases today — two Army and one Marine Corps.

In United States v. Jasper, No. 13-0013/AR, CAAF granted review of four issues — including an issue (Issue IV) that played a role in the Salyer case:  the cutoff age for child pornography under military law.

I.    WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED THE ACCUSER TO RECLAIM A REGULATORY PRIVILEGE AFTER PREVIOUSLY WAIVING THAT PRIVILEGE AND DISCLOSING THAT THE ACCUSER ADMITTED FABRICATING SOME OF THE ALLEGATIONS AGAINST APPELLANT.

II.  WHETHER THE ARMY COURT ERRED WHEN IT CREATED A CONSTITUTIONAL “KNOWING” ELEMENT TO MILITARY RULE OF EVIDENCE 510(a) REQUIRING A PRIVILEGE HOLDER TO BE INFORMED OF THE REGULATORY PRIVILEGE IN ORDER FOR THE DISCLOSURE TO BE DEEMED VOLUNTARY.

III. WHETHER THE GOVERNMENT’S FAILURE TO ALLEGE THE TERMINAL ELEMENT IN SPECIFICATION 1 OF CHARGE II AND THE SPECIFICATIONS OF THE ADDITIONAL CHARGE RESULTED IN MATERIAL PREJUDICE TO APPELLANT’S SUBSTANTIAL RIGHT TO NOTICE.

IV.  WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL MEMBERS THAT IN ORDER TO FIND APPELLANT GUILTY OF POSSESSION OF CHILD PORNOGRAPHY IN VIOLATION OF ARTICLE 134, CLAUSE 1 AND 2, THE IMAGES MUST BE OF A CHILD UNDER THE AGE OF EIGHTEEN, INSTEAD OF UNDER THE AGE OF SIXTEEN AS THE UCMJ DEFINES CHILD.

ACCA’s unpublished opinion in the case is available here.

Here’s the granted issue in United States v. Dalton, No. 13-0124/MC:

IN UNITED STATES v. JONES, THIS COURT RETURNED TO THE STRICT ELEMENTS TEST FOR DETERMINING THE EXISTENCE OF LESSER-INCLUDED OFFENSES.  MURDER AND VOLUNTARY MANSLAUGHTER REQUIRE THE INTENT TO KILL OR INFLICT GREAT BODILY HARM, BUT INVOLUNTARY MANSLAUGHTER REQUIRES CULPABLE NEGLIGENCE.  UNDER JONES, IS INVOLUNTARY MANSLAUGHTER A LESSER-INCLUDED OFFENSE OF EITHER MURDER OR VOLUNTARY MANSLAUGHTER?

NMCCA’s opinion in the case is published at 71 M.J. 632.

Finally, in United States v. Bennitt, No. 12-0616/AR, CAAF specified an addititional issue:

In Specification 2 of Charge I Appellant is charged with unlawfully killing Leah King while aiding and abetting Ms. King’s wrongful use of Oxymorphone, which is alleged to be an “offense” directly affecting the person of Ms. King.  Must Ms. King’s use of Oxymorphone be an “offense” to be legally sufficient to support the finding of guilty under Article 119(b)(2)?

We previously discussed the issue that CAAF granted in Bennitt on 19 September 2012.  An interesting aspect of Bennitt is that the specified issue uses a deep issue-like format. 

2 Responses to “Grants galore”

  1. Phil Cave says:

    In Jasper, what happened to the motion to strike the witness’s testimony because the defense was deprived of critical credibility cross-examination through assertion of a privilege?  Isn’t this similar to MRE 301(f)(2)?
    And any impact of MRE 512(b), on “good cause?”
    To paraphrase Matthews, in a different context, doesn’t this grant the government a privilege to mislead?  
     

  2. SFC V says:

    Jasper was a case that occurred within my former command but the active duty OSJA at Redstone handled the prosecution.  I always thought allowing the witness to claim the privilege violated Jasper’s right to confront the witness.  The rights of the accused generally outweigh any regulatory prvileges or rights of the witnesses. 
     
     If memory serves me this is what happened (according to testimony at trial): 
     
    1.  When the victim, who was the step daughter of the accused, was 14/15 she told her mom about an incident of sexual abuse.  The mom and two daughters moved back to Ohio at which point the victim recanted to her minister.  The family then returned to Alabama.
     
    2.  When the victim was 16 Jasper took pictures of and molested her.
     
    3.  A short time later the mother found the pctures on his phone.  When she confronted him, he took the phone, locked himself in the bedroom, and deleted the pictures.  The mother called 911.
     
    I’m not sure that it would have made a difference in the outcome but I still think the defense should have been allowed to question the victim about it and call the minister as a witness.  My real problem is that the victim waived the priviliege to allow the minister to speak with the TC but invoked the privilege at trial.  The TC did at least disclose this information but getting the victim to waive and then invoke is a bit troubling to me.