Opinion Analysis: A mess so big that the charge is dismissed with prejudice, in United States v. Honea
CAAF decided the Air Force case of United States v. Honea III, 77 M.J. 181, No.17-0347/AF (CAAFlog case page) (link to slip op.), on Thursday, February 1, 2018. Finding the record “a tangled morass,” that “does not establish with certainty what the findings were,” CAAF concludes that appellate review is impossible and reverses the findings, sentence, and decision of the Air Force CCA. Yet because the record is “so irredeemably muddled,” CAAF does not authorize a rehearing and instead dismisses the charge with prejudice.
Judge Ohlson writes for a unanimous court.
CAAF granted review of two issues:
I. Immediately before the defense rested its case, the military judge invited the parties’ attention to R.C.M. 910, and directed the defense to provide the military judge with a draft specification of assault consummated by a battery. Did the lower court err when it held that the defense’s compliance with the military judge’s directive constituted a de facto defense request to modify the specification pursuant to R.C.M. 603 where there is no evidence that either the defense or the convening authority were aware the charge was being amended pursuant to R.C.M. 603?
II. The military judge dismissed Specification 2 of Charge II, abusive sexual contact by causing bodily harm, for failure to state an offense, but she allowed the Government to roceed to trial on the purported lesser included offense of assault consummated by a battery. Did the military judge err?
At the conclusion of the oral argument in this case, Chief Judge Stucky said:
Counsel for both sides having manfully striven to make something of this mess, the case is now submitted.
The mess, however, prevails.