CAAF heard oral argument in the interlocutory Air Force case of United States v. Mangahas, No. 17-0434/AF (CAAFlog case page), on October 11. The court granted review after the Air Force CCA reversed the military judge’s ruling that dismissed the charge of rape – alleged to have occurred in 1997 – with prejudice. The military judge found a violation of the accused’s Fifth Amendment (due process) right to a speedy trial based on the 18-year delay in charging the accused and the death of a witness.

During the oral argument there were a few questions about the statute of limitations, which is either five years or unlimited depending on whether death was an authorized punishment for rape in 1997.

In an order issued yesterday, CAAF requested briefing on the applicable statute of limitations:

No. 17-0434/AF. U.S. v. Edzel D. Mangahas. CCA 2016-10. On further consideration of the record, it is ordered that the parties shall brief the following issue specified by the Court:

IN LIGHT OF COKER V. GEORGIA, 433 U.S. 584, 598 (1977), AND UNITED STATES V. HICKSON, 22 M.J. 146, 154 n.10 (C.M.A. 1986), WAS THE OFFENSE OF RAPE OF AN ADULT WOMAN, A VIOLATION OF ARTICLE 120, UCMJ, 10 U.S.C. § 920 (SUPP. II 1997), A CRIME PUNISHABLE BY DEATH WITHIN THE MEANING OF ARTICLE 43, UCMJ, 10 U.S.C. § 843 (1994)?

The parties will brief this issue contemporaneously, and file their briefs on or before November 14, 2017. Reply briefs on this issue may be filed on or before November 27, 2017.

Footnote 10 in Hickson read, in significant part:

The Uniform Code and many state penal codes authorize death sentences for rape; but in the absence of aggravating circumstances, such punishment cannot be constitutionally inflicted. Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977).

We discussed this issue back in 2012, in this post. That was something of a follow-up to this post, where Dwight Sullivan reported that the Supreme Court overlooked the UCMJ when it reviewed the law governing the maximum sentence for rape of a child in Kennedy v. Louisiana, 554 U.S. 407 (2008). That post was picked up by the New York Times, and prompted petitions for a rehearing in the case (that was ultimately denied).

4 Responses to “CAAF orders additional briefs in Mangahas on whether death was an authorized punishment for rape in 1997”

  1. Cloudesley Shovell says:

    I had this exact issue in a case before CAAF (twice!) some time ago.  It’s been many years, but I seem to recall that the law was pretty clear: if the punishment was listed in the statute (thus making the offense “punishable by death”), it was controlling for statute of limitations purposes regardless of whether the case was referred capital or whether the punishment could be constitutionally imposed.  It will be fascinating to see how CAAF deals with this issue in the present case.
     
    –CS
     

  2. Sir Visdis Crediting says:

    O/T: Is CAAFlog no longer partnering with NIMJ? Bummer…

  3. Terri Zimmermann says:

    Cloudesley Shovell, will you please email me at Terri.Zimmermann@ZLZSlaw.com? Thanks.

  4. Vulture says:

    Zach.  SVC (an unfortunate moniker) is on to something.  NIMJ Link under link doesn’t work either.