CAAF will hear oral argument in the Army case of United States v. Robinson, No. 17-0231/AR (CAAFlog case page), on Wednesday, November 29, 2017, at 9:30 a.m. The case challenges convictions of violating a lawful general regulation (fraternization) and sexual assault of a person who was incapable of consenting due to impairment by an intoxicant, in violation of Articles 92 and 120. The appellant was convicted by a general court-martial composed of members with enlisted representation, and was sentenced to reduction to E-1, total forfeitures, and a bad-conduct discharge (and no confinement).

CAAF granted review of two issues and specified a third:

Granted Issues:
I. Whether the miltiary judge erred by failing to admit constitutionally required evidence under Military Rule of Evidence 412(b)(1)(C).

II. Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for the specification of Charge 1, which involved an Article 92, UCMJ, violation of Army Regulation 600-20.

Specified Issue:
Whether the evidence was legally sufficient to establish that Appellant knew or reasonably should have known that SPC VM was too intoxicated to consent to a sexual act.

Specialist (E-4) Robinson attended a party at the off-base residence of another specialist. Many were in attendance, including other specialists and also junior enlisted soldiers. One of the other specialists was Specialist VM, who was drinking at the party but left because she felt uncomfortable as the only female present. Gov’t Div. Br. at 4. VM drove herself back to the barracks and while nobody stopped her from driving, one of the other partygoers followed her and then returned to the party and reported that she made it home safely. Gov’t Div. Br. at 5.

At trial VM testified that after returning to her barracks room she vomited, quickly washed, undressed, put a trash can next to her bed, and fell asleep. She testified that her next memory was of Robinson on top of her having sex with her. Her next memory after that was waking up later in the day.

Robinson testified in his own defense and told a different story. Well, he tried to. Citing Mil. R. Evid. 412, the military judge prohibited Robinson from testifying that he and VM had previously discussed having sex, prohibited Robinson’s defense counsel from calling other witnesses to testify about flirtatious activity they observed between VM and Robinson, prohibited Robinson’s defense counsel from asking VM about that prior flirtatious activity, and rejected a question from a member directed at a friend of both Robinson and VM that asked: “From what you know of SPC [VM], did she ever display interest towards SPC Robinson?” App. Br. at 8-9 (quoting record).

Mil. R. Evid. 412 is the military’s rape shield rule, and it prohibits admission of evidence “offered to prove that any alleged victim engaged in other sexual behavior” (Mil. R. Evid. 412(a)(1)) and evidence “offered to prove any alleged victim’s sexual predisposition” (Mil. R. Evid. 412(a)(2)). The rule does, however, contain exceptions, including for:

[E]vidence the exclusion of which would violate the constitutional rights of the accused.

Mil. R. Evid. 412(b)(1)(C). This constitutionally-required exception is notable for a few reasons, including that there isn’t a bright-line where exclusion of evidence violates an accused’s constitutional rights, and that CAAF found the exception’s procedural requirements problematic in United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011) (the JSC proposed eliminating the problematic test it in the rewrite of the MCM for the MJA).

Specifically, while Mil. R. Evid. 412 mirrors the equivalent Fed. R. Evid. 412, the military rule includes an additional test that balances the alleged victim’s privacy against the evidence offered under an exception to the rule:

If the military judge determines on the basis of the hearing described in paragraph (2) of this subsection that the evidence that the accused seeks to offer is relevant for a purpose under subsection (b) and that the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim’s privacy, such evidence shall be admissible under this rule to the extent an order made by the military judge specifies evidence that may be offered and areas with respect to which the alleged victim may be examined or cross-examined. Such evidence is still subject to challenge under Mil. R. Evid. 403.

Mil. R. Evid. 412(c)(3) (emphasis added). The federal rule does not require balancing the probative value against the evidence in criminal cases, however it does require such balancing in civil cases. The 1994 commentary by the Rules Advisory Committee about this distinction includes that:

Under subdivision (b)(1)(C), evidence of specific instances of conduct may not be excluded if the result would be to deny a criminal defendant the protections afforded by the Constitution. For example, statements in which the victim has expressed an intent to have sex with the first person encountered on a particular occasion might not be excluded without violating the due process right of a rape defendant seeking to prove consent. Recognition of this basic principle was expressed in subdivision (b)(1) of the original rule. The United States Supreme Court has recognized that in various circumstances a defendant may have a right to introduce evidence otherwise precluded by an evidence rule under the Confrontation Clause. See, e.g., Olden v. Kentucky, 488 U.S. 227 (1988) (defendant in rape cases had right to inquire into alleged victim’s cohabitation with another man to show bias).

Subdivision (b)(2) governs the admissibility of otherwise proscribed evidence in civil cases. It employs a balancing test rather than the specific exceptions stated in subdivision (b)(1) in recognition of the difficulty of foreseeing future developments in the law. Greater flexibility is needed to accommodate evolving causes of action such as claims for sexual harassment.

Fed. R. Evid. 412 advisory committee note (1994 amendment) (emphases added) (available here).

CAAF addressed this balancing test in Gaddis, rejecting a facial challenge to the constitutionality of Mil. R. Evid. 412 but concluding that balancing an alleged victim’s privacy interests “would only be unconstitutional in circumstances under which a military judge excluded evidence, the exclusion of which would violate the constitutional rights of the accused, because its probative value did not outweigh the danger of unfair prejudice to the alleged victim’s privacy.” 70 M.J. at 253 (emphasis omitted). A few weeks later CAAF decided United States v. Ellerbrock, further explaining that:

in general the probative weight of the evidence must outweigh the privacy interests of the victim. It is true that M.R.E. 412(c)(3) evidence may be sufficiently relevant and material — its probative value sufficiently high — that it may be essential to an accused’s constitutional right to put on a defense regardless of how it balances against the victim’s privacy. If so, its probative weight will necessarily outweigh any privacy interests of the victim. Such evidence in the vernacular of case law is termed “favorable,” or “vital” to the accused, and is constitutionally required because the accused has a right to a fair trial and an opportunity to put on a defense.

70 M.J. 314, 323 (C.A.A.F. 2011) (emphasis added). Fundamentally, these cases (and the commentary to the federal rule) outline the rather obvious proposition that in a criminal prosecution an accused’s constitutionally-protected rights are more important than an alleged victim’s privacy. Accordingly, once a military judge determines that certain evidence is constitutionally-required to be admitted (a difficult question, for sure), privacy considerations can’t prevent its admission.

Neither Robinson nor the Army Government Appellate Division challenge that proposition, but the victims-rights advocacy group, Protect Our Defenders (POD), does.

POD filed an amicus brief in support of the Army Government Appellant Division that asks CAAF to reject its holdings in Gaddis and Ellerbrock because:

No civilian court has ever held that considering a victim’s privacy is unconstitutional. As discussed above, victims’ privacy is a legitimate governmental interest because it promotes the reporting of sexual assault, encourages victims’ continued participation in the prosecution of sex crimes, and protects victims from embarrassment and degradation.

In a footnote in Gaddis, this Court incorrectly asserts that the current federal rule does not include a balancing test to determine whether the three exceptions applied. Id. at 255 n. 3.10 Federal courts continue to determine whether evidence is “constitutionally required” by conducting a balancing test that weighs the probative value of the evidence against the privacy interests of the victim. See United States v. Pumpkin Seed, 572 F.3d 552 (8thCir. 2009); Barbe v. McBride, 521 F.3d 443 (4th Cir. 2008); Dolinger v. Hall, 302 F.3d 5 (1st Cir. 2002); Richmond v. Embry, 122 F.3d 866 (10th Cir. 1997); United States v. Seibel, 2011 U.S. Dist. LEXIS 88607 (D.S.D. August 9, 2011); Grant v. Demskie, 75 F.Supp. 2d 201 (S.D. N.Y. 1999); United States v. Powell, 226 F.3d 1181 (10th Cir. 2000); Petkovic v. Clipper, 2016 U.S. Dist. LEXIS 94532 (N.D. Oh. 2016); Buchanan v. Harry, 2014 U.S. Dist. LEXIS 66665 (E.D. Mich. 2014); Gagne v. Booker, 680 F.3d 493 (6th Cir. 2012).

The above cases are not comprehensive. There are more cases. What cannot be found is a single case (outside of the military justice system) that prohibits weighing the probative value of the evidence against a victim’s privacy interests.

Amicus Br. at 18-19. CAAF, of course, has also “[n]ever held that considering a victim’s privacy is unconstitutional.” Rather, as discussed above, CAAF held that excluding evidence and violating the accused’s constitutional rights in order to protect an alleged victim’s privacy would be unconstitutional.

Furthermore, a quick review of some of the cases cited by POD suggests that they are readily distinguishable, either on their facts or on the different requirements of the state rules at issue (some are habeas petitions in state cases). But what’s really surprising is that it didn’t take much effort to find what the amicus brief claims cannot be found:

[T]he Rule explicitly recognizes that in a proper case the constitutional right of a criminal defendant to confront the witnesses against him shall be paramount.

. . . Granted, pursuant to Fed. R. Evid. 611(a)(3), the Court must shield witnesses from “harassment or undue embarrassment,” but there is no corresponding judicial obligation to protect a witness from being discredited or tangentially embarrassed. To paraphrase Davis, whatever temporary embarrassment might result to the complainant or her family by disclosure of her prior allegations of rape is outweighed by Defendant’s right “to probe into the influence of possible bias in the testimony of a crucial identification witness.”

United States v. Stamper, 766 F. Supp. 1396, 1404 (W.D.N.C. 1991) (order) (citations omitted) (emphasis added). Admittedly, Stamper pre-dates the modern version of Fed. R. Evid. 412 (the rule was significantly revised in 1994). But the original text (available here) is functionally identical to the current version insofar as an alleged victim’s privacy isn’t specified as a factor in a criminal case. In both the original rule and the current rule (each a creature of Congress) an alleged victim’s privacy is a required consideration in a civil case, but not in a criminal case. POD’s brief functionally ignores this (dodging it in a footnote. Amicus Br. at 18 n.10). Perhaps this is why POD can’t find a case that’s clearly on point.

By the way, an interesting note about Stamper is that CAAF cited it in LRM v. Kastenberg, 72 M.J. 364, 370 (C.A.A.F. 2013) (CAAFlog case page), observing that the district court appointed counsel for the victim and allowed that lawyer to examine witnesses on the 412 issue.

Ultimately, the privacy of an alleged victim is the underlying purpose of the rape shield, but creating a rule to protect privacy generally isn’t the same as allowing privacy to equal (or override) constitutional rights.

Regardless of what CAAF thinks of POD’s brief, privacy is an unconvincing reason to deny Robinson the opportunity to testify about his discussions with VM about what they might do together, or to allow others to testify about their observations of VM and Robinson together. VM can hardly claim privacy against Robinson for her conduct with Robinson himself, particularly where that conduct is in the presence of third-parties.

And so it’s unsurprising that the Government Division’s brief doesn’t make a privacy argument, but instead argues relevance:

The military judge did not abuse his discretion because appellant failed to articulate a theory that showed the evidence was relevant, material, and that the evidence was more probative than the dangers of unfair prejudice.

Gov’t Div. Br. at 14. The Government Division asserts that Robinson’s claims about prior discussions about sex “lacked context and specificity, [and] was a self-serving claim made by appellant, and defense failed to connect these purported conversations with appellant’s supposed mistake of fact as to consent.” Gov’t Div. Br. at 15. As for the flirting:

Appellant’s theory is based on the belief that hugging and flirting, at some unknown date prior to the offense, establishes consent or mistake of fact as to consent to sexual intercourse. This is misguided, and the probative value of evidence supporting such a theory is low. The low probative value is significantly outweighed by the danger of, “among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Van Arsdall, 45 U.S. at 679.

Gov’t Div. Br. at 16. This is an appealing argument except that the other things seem to amount to nothing in this case. What in the world was so invasive or confusing about testimony that people saw VM and Appellant flirting (particularly considering one of the members specifically asked about it)? The Government Division’s brief doesn’t say.

The Government Division’s brief also argues that “evidence of prior sexual interest may be material to the issue of consent; however, it is irrelevant here because of SPC VM’ s inability to consent due to her intoxication.” Gov’t Div. Br. at 17. But Robinson’s brief highlights the prosecution’s closing argument:

Members of the panel, the version of the story given to you, the version of events given by Specialist Robinson is unreasonable. Unreasonable. When you return to deliberate, consider the reasonableness.

App. Br. at 13 (quoting record) (emphases omitted). The problem for the Government Division is that the full context of the relationship between Robinson and VM might have made Robinson’s testimony reasonable.

I expect Wednesday’s oral argument will focus on the facts actually excluded and how they might have affected the result, with privacy considerations as an afterthought.

CAAF also specified an issue questioning whether the evidence is legally sufficient. This is a difficult issue to gauge without the full record, but Robinson’s brief focuses on some significant facts including that VM successfully drove back to the barracks (and presumably through a military checkpoint, though the brief doesn’t say), that Robinson testified about VM’s active participation in the sex, and that VM testified that Robinson’s version “could have happened” but she just didn’t remember. App. Br. at 45 (quoting record).

The Government Division does, however, present the stronger argument on the second granted issue. Robinson’s brief argues that:

applying a general intent mens rea to the language from AR 600-20 in this case is not a sufficient level of mens rea to separate wrongful from otherwise innocent conduct. In fact, based on SPC Robinson’s testimony, he was merely drinking alcohol and socializing with his friends, none of whom were part of his platoon or under his supervisory authority. Neither of these actions are inherently criminal. One of the witnesses even explained, “It was a normal typical Friday. We were all drinking, playing dominoes, and just having fun and talking.”

App. Br. at 34. The Government Division responds:

fraternization involves a violation of the boundaries necessary for healthy relationships between soldiers of different ranks. A noncommissioned officer cannot innocently expose a junior soldier to an unduly familiar relationship. Accordingly, all that is necessary to separate wrongful from innocent conduct for a fraternization offense is to prove appellant deliberately engaged in the behavior determined by the factfinder to create the deleterious effects prohibited by AR 600-20.

Gov’t Div. Br. at 26.

CAAF issued a bunch of decisions addressing mens rea over the past two years. The first was United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page), which held that an accused must have acted with at least reckless disregard for the true age of a person to whom he provided alcohol in order to be convicted of violating the order prohibiting providing alcohol to an underage person. The second was United States v. Rapert, 75 M.J. 164 (C.A.A.F. Mar. 18, 2016) (CAAFlog case page), which held that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires proof of an accused’s mens reaThe third was United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016), cert denied, 137 S. Ct. 248 (Oct. 3, 2016) (CAAFlog case page), which held that there is no scenario where an accused could innocently engage in the kind of conduct prohibited by the general intent military offense of maltreatment. The fourth was United States v. Haverty, 76 M.J. 199 (C.A.A.F. Apr. 25, 2017) (CAAFlog case page), holding that recklessness is the minimum mens rea to sustain a conviction of hazing in violation of Army Regulation 200-20 paragraph 4-20. Coincidentally, in each of these cases Judge Ohlson wrote for the court. A fifth decision, in United States v. Tucker, 76 M.J. 257 (C.A.A.F. May 23, 2017) (CAAFlog case page), was per curiam and held that the term neglects in Article 134 does not mean negligence (rejecting the published decision of the Army CCA that found that the term states a negligence mens rea).

I think it likely that CAAF will seek to use the reasoning of these five decisions to resolve the mens rea issue in Robinson.

 Case Links:
• ACCA opinion (summary disposition)
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) answer
• Appellant’s reply brief
• Amicus brief (Protect Our Defenders) in support of Army Gov’t App. Div.
Blog post: Argument preview

26 Responses to “Argument Preview: A military judge’s restrictions, the constitutional rights of the accused, and a special interest group’s claims about privacy, in United States v. Robinson”

  1. Nathan Freeburg says:

    I haven’t had time to read everything but the trial judge denying (at least most of) the evidence on B1b grounds is patently absurd. You don’t have to get to b1c (I realize that’s not what CAAF granted but…). There are a couple judges out there trying this soda straw view of the rule but the reality is that the accused has a right to put on a defense.
    Second, CAAF has made very clear that whether the accused’s story is self-serving or not credible isn’t relevant.  What matters is there is some evidence for it (even if only the testimony of the accused — not so in this case).

  2. Dew_Process says:

    If one is considering the “constitutional rights of the accused,” it seems strange imho that DAD did not start with the seminal SCOTUS cases of Davis v. Alaska, and Pennsylvania v. Richie.

  3. Bill Cassara says:

    And resolved by a Summary Disposition at ACCA.  SMH.

  4. DCGoneGalt says:

    Perhaps to Protect of Our Defenders, we must Pettifogger & Persecute Other Defenders? 
    In line with Nathan Freeburg, how is this evidence at least not first considered under 412(b)(1)(B) and, if denied under (B)(1)(B), then, and only then, considered under (b)(1)(C)? Any if the trial judge considered (b)(1)(B) then why are not (b)(1)(B) and (C) reviewable on appeal?
    Are military judge’s starting to just start playing the role of Gandalf in the mines of Moria when confronted by the Balrog and yelling “You shall not pass!”?

  5. Megan Herriford says:

    i was the DC on this case. To address one of your comments above, she didn’t have to drive through any checkpoints because the party was on post and she lived on post. However, we admitted a giant map of base showing her most likely routes home, all of which took at least 10 minutes, required her to navigate multiple (like 7-8) traffic control devices (stop signs, stop lights, and a roundabout), and make several turns along the way, including successfully navigating a parking lot full of other cars, concrete barriers, and trees. And then she had to walk up the three flights of stairs to her room without assistance.
    The government’s response to our MRE 412(b)(1)(B) argument was that flirting itself didnt amount to prior sexual behavior (it’s only predisposition), so it didnt fit into the exception. Although I’m not sure if that’s what the judge relied on in making his ruling, it certainly seemed to have a persuasive effect during the 39(a).
    I could talk forever about all the ridiculousness in this case, but I’m confident the hard-working DAD counsel have it covered.

  6. stewie says:

    You know, I’d like to be a MJ. I often think, boy, do I really though? This is a hard job, so many tough decisions, am I smart and experienced enough to even consider doing this??
    Then I read stuff like this and I can’t help but wonder if this person is doing it…

  7. Nathan Freeburg says:

    If flirting and sexual conversations are not prior sexual behavior (which would be news to most military judges I’ve practiced in front of), then they’re not covered by MRE 412 and we just have a standard 401-403 analysis at trial (and they clearly go to the state of mind of both the accused and the alleged vic).  Or am I just an idiot?  Or was the government’s argument that flirting is covered by MRE 412 but that a B1B exception only applied to prior sexual acts but not any other sexual behavior?  I’m confused.

  8. Megan Herriford says:

    yes, that’s it. They said that flirting falls within 412 because it’s sexual predisposition, but doesn’t fall under B1B because it’s not “prior sexual behavior,” and B1B doesn’t explicitly incorporate sexual predisposition. I think it’s inane to say that flirting isn’t behavior. And if I’m not mistaken, I think more recent cases have even said that flirting doesn’t fall under the purview of 412 to start with.

  9. Nathan Freeburg says:

    Oy vey.

  10. stewie says:

    OK…don’t agree but got it, but how does that address the talking about sex with each other comment? How in the world does that not come in?

  11. Anon DC says:

    I might be confused (as is frequently the case), but isn’t the issue in this case whether the alleged victim was capable of consenting at the moment?  I understand how prior flirtatious behavior would be relevant for a lack of consent case, but it seems attenuated for a case in which her ability to consent later in the evening is the question. To be clear, her ability to flirt coherently and in an apparently sober manner could definitely be relevant to whether she was capable to consent.  But is that the question here?

  12. DCGoneGalt says:

    Anon DC: That has to be the issue, you clearly separated it in a way no one else has in one sentence (I hope you are an appellate counsel because brevity and clarity seem to be a skill not many have).  But when mistake of fact is used as a defense wouldn’t that still open up the admissibility of the evidence?  I understand the incapacitation issue but still can’t see how hat prevents the admissibility of the preferred evidence.  

  13. stewie says:

    Anon DC that is HER version. And it might even be the ultimate truth. But he has the right to present HIS version, and then the panel decides. HIS version, she wasn’t too drunk to consent and they’d talked about having sex prior. The only way you deny his ability to present his version is if you take her version as the truth, which is not the role of the MJ.  And yes, you are correct, if she’s flirting and doing other seemingly not too intoxicated to consent things close enough in time to the act, that’s evidence of capability to consent too.

  14. Zachary D Spilman says:

    but isn’t the issue in this case whether the alleged victim was capable of consenting at the moment

    That’s half of the element (the other half is that the accused knew or should have known it). But a person who does consent necessarily can consent, United States v. Prather, 69 M.J. 338, 343 (C.A.A.F. 2011), and a reasonable (but wrong) belief that a person did consent disproves the knowledge. So, whether the alleged victim’s conduct amounts to consent under the circumstances, and whether the accused reasonably (if wrongly) believed that the conduct amounted to consent, are very much in issue.

    See Consent and Mistake of Fact as to Consent: Defenses to Adult Sexual Offenses under the Uniform Code of Military Justice, 2014 Emerging Issues 7277 (noted here).

  15. Sir Visdis Crediting says:

    That line from Prather explains why the former scheme was unconstitutional. Today, the defense does not have to prove consent and, in so doing, necessarily negate the element of incapacity, so Anon DC is correct. The government at all times has the burden to prove the victim was incapable and the accused knew or reasonably should’ve known the V was incapable. Evidence of consent offered by the defense is really evidence of capability (or evidence reasonably, but mistakenly relied upon).

  16. Zachary D Spilman says:

    I don’t agree what that interpretation of Prather.

    Nevertheless, it’s axiomatic that a person who does consent, can consent; that an accused who believes a person does consent, believes they can consent.

  17. Defense Wizard says:

    Nate – I don’t think I’ve ever seen a judge say that “flirting” is not sexual behavior within the entire meaning of 412. The Government’s argument short-circuits the entire point of the exceptions, and completely discounts everything we know about both normal sexual behavior.

  18. Nathan Freeburg says:

    Defense Wizard:  Well, yeah.  But this judge did.  (I thought I’ve heard of a couple other judges taking the position that if the flirting wasn’t that same night then it didn’t come in under B1b — which is still absurd).
    What’s the government’s position next? That the naked photos sent to the accused before and after an incident are “predisposition” but not “behavior”?
    I wonder if what this judge really did was apply the credibility test they’re not supposed to apply.

  19. stewie says:

    That’s absolutely what happened…which is why we get the “self-serving” language in the brief (because an AV’s version is the truth, but an accused is “self-serving”).
    Because if you aren’t deciding that they are, in effect, lying, then how else do you justify not letting the accused’s version of events before the panel?

  20. Megan Herriford says:

    to be clear, the judge did let in their interactions with each other the night of the incident – just not anything before that. And it’s been 3 years so my memory may be a bit rusty, but I’m very certain the evidence of flirting wasn’t just from the accused – several others had seen it too, and testified during the 39(a). All that was kept out because it was several days or weeks before the incident.

  21. K fischer says:

    Seems like the flirting prior to the evening in question would support a reasonable mistake of fact defense in that she was consenting on the night in question.  
    Say PFC Billy has a gf and PFC Susie wants Billy.  She propositions him and he politely declines BBC he has a gf.  But, she continues to flirt with him, day after day, week after week.  Then one Friday Billy comes to work all gloomy and Susie asks him what’s wrong.  He tells her that gf broke up with him because of Jody.  Susie invites him out to go party.  They both get wasted and go back to the baracks where they have intercourse.  On Monday, Billy comes into work and tells Susie that gf called and he forgave her after a long conversation about her moving to be with him.  Susie goes to CID who advises he to make a pretext phone call where Billy admits she was wasted and they shouldn’t have had sex and he apologizes for what he did to her.  I guess this MJ would say none of the prior flirting was admissible because it is predisposition?  
    Yeah!  Predisposition for Susie to get her swerve on with Billy for which he had knowledge!!!!  Understanding that your facts probably differ, the concept is still the same.  So, did you go blind when you stuck a pencil in your eye arguing the motion?

  22. Megan Herriford says:

    completely agree with the analogy. It was very frustrating to be so limited in what evidence we could present. Even so, I thought we did a damn good job trying the case, and apparently the panel bought some of our argument since they didn’t see fit to give any confinement. This is one I still lose sleep over. 

  23. Defense Wizard says:

    Megan – We all have one (or more) that we lose sleep on, because we knew that we  tried a good case, but the judge decided to put his finger on the scale. Thankfully, CAAF is good about righting those kinds of things. That said, summary disposition at ACCA is an embarrassment. If you recall Commisso, ACCA didn’t even address the issue on which CAAF unanimously reversed. 

  24. Tami a/k/a Princess Leia says:

    k fischer, they were on a break!

  25. Hack says:

    Megan – Good on you for fighting for your client. You did what you could. I hope he gets appellate relief.

  26. K fischer says:

    You did an awesome job particularly in light of that ruling.  You will be vindicated with the reversal.  Because it will be reversed.