Audio of this week’s oral arguments at CAAF is available at the following links:

United States v. Hendrix, No. 18-0133/AR (CAAFlog case page): Oral argument audio.

United States v. Christensen, No. No. 17-0604/AR (CAAFlog case page): Oral argument audio.

7 Responses to “CAAF Argument Audio: Hendrix & Christensen”

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

    The audio link for Christensen doesn’t seem to work.

  2. k fischer says:

    Hendrix doesn’t work either, Bromigo.

  3. Less Concerned says:

    CAAF’s website is down and gives the same errors as the audio links.

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

    I listened to Hendrix last night.  Sticky gets right to the point.  What’s going on?  What’s up with this DODI that gives complainant control over what happens with a case?
     
    I think this will be a close call, but because of the standard for review, close call will be decided in Hendrix’s favor. 

  5. k fischer says:

    Very impressed with Defense Appellate Division counsel.
     
    What’s going on here?  The Military has been placed under great scrutiny and pressure by Congress to prosecute sexual assault cases.  Recognizing this pressure while balancing the desire of the complaining witness under the DODI (because I don’t see under Article 6b anywhere saying that the victim’s wishes should be considered in whether a prosecution moves forward) the Government preferred charges knowing that the alleged vic did not want to participate in a trial. Most likely, they were hoping that the Accused would submit a Chapter 10 and go quietly in the good night, so the Government could explain that the reason they did not proceed was because of the desire of the alleged vic AND they wouldn’t have to go through the nutroll of convening a separation board.  When that did not happen, the SJA’s office met with her to try to “convince” her to go to trial.  She waffled and said yes, then she said, “No.”  So, the Government dismissed the charges they never should have preferred.  Then, when this complaining witness, who for some reason does not want to be cross examined or disclose mental health issues, suddenly wanted to participate in a trial, the Government repreferred and threw out this excuse that the previous dismissal was because she didn’t want to participate, which the MJ did not buy because she didn’t want to participate from the get go.  And this whole dog and pony show is because military lawyers are terrified that if they do not move forward with a case, then the alleged victim will be down at Gillbrand’s office with a SWAN or POD representative to complain about them.
     
    Meanwhile, the Accused is on this roller coaster ride, taken off his job, has a mental breakdown of his own due to the dismissal/repreferral, which perhaps resulted upon his realization that, due to his genetalia, he is not a part of the United States of America that the TC and SVP purports to represent, but rather, they represent the complaining witness who for some reason does not want to be confronted with facts by defense counsel regarding her testimony and has mental health issues.  
     
    What I would have liked to have known under the Dooley standard is how is “the seriousness of the offense” determined.  Is it just a de facto analysis of what the offense is and the punishment?  Or, is defense counsel allowed to show that while the crime alleged is serious, the reason it was preferred and the facts of the offense shows that it is really not that serious.  So, can defense counsel go into the facts of the case to show why it was such a weak case to show why the charges really aren’t all that serious?  Just because the charge sheet alleges a 120 offense, does not make the charge serious.  (Quite frankly, I’ve seen a couple of cases where the actual facts made the actual allegations a joke.  Pretty much everyone in the courtroom knew that the cases were politically driven.) 
     
    And, what about the fact that the Convening Authority was willing to dismiss the charges in lieu of an administrative separation?  Doesn’t that show that the charges in this case were not all that “serious?”  
     
    And, I love how the GAD attorney kept on repeating that the check on the constitutional speedy trial violation is “the military judge.”  Weeeelllll, didn’t the military judge protect the constitutional rights of the accused in this case?  So, what, other than the military judge, is the check to protect the accused’s 6th amendment right to a speedy trial?  How many flipping times does the Government get to prefer and reprefer?  GAD and DAD counsel had it right.  It’s within the discretion of the military judge who acts as the check.
     
    Judge Stucky was correct in the implication of his question, “Doesn’t this dismissal reek of subterfuge?”  They should have arraigned the accused and issued a subpoena for her presence at trial.  Or, they never should have preferred in the first place.  One of the judges sounded like he didn’t believe that was an option, i.e. the accuser could just not appear and the Government would be left hanging, rather than getting a federal marshall to go yank her a$$ into court, so she could put a dangerous rapist behind bars.  
     
    I see this issue similarly to a 412 issue where a court held that an accuser’s right to privacy trumps the Accused’s right to confront his witness with Constitutionally required evidence.  CAAF reversed on that issue, didn’t they? So, why should the Accusers right to privacy be allowed to dictate the Government’s actions to trump an Accused’s right to a speedy trial?

  6. JBF says:

    A subpoena isn’t even necessary to secure availability of the witness based on the facts presented.  Although it was only mentioned in passing, it came out that the witness is an active duty Soldier.  As such, availability only requires a lawful order to testify.  Availability of the witness was in the convening authority’s power at all times. 

  7. Vulture says:

    I haven’t listened to Christensen but let’s not forget the 5th Circuit Case Butler.  CAAFLog case page.  In that case the judge found that the provision for no legal effect to the 214 was that the discharge was still to take effect for when the service member was not cooperative with the process.  That is pseudo-dicta and the case was not to serve as precedent.  But in the present instance, when the Government is beating the table about procedure, it has been the thwarting of COJ -> Commander -> Pay Office that has been the uncooperative party.  Consider the edition of Army Lawyer November 2009.  Here at page 29.  That aspect of that article being the most catching ending of where a Friday afternoon dust-storm “In the end, the facts of the case and the policies and procedures of the local finance office allowed the U.S. Army to prosecute this Soldier for his crimes.”
     
    Here is where I see the crime: Paragraph b) of 1168 makes its own statement about the necessity for allowing the soldier to get treatment at a VA.  Christensen was in alcohol rehab when the MP’s came in and dragged him on to post where he was disallowed access to health care.  I would like to know where to find the rehabilitive ethic in that.