Recent A.F.C.C.A. opinions

Yesterday (090209) A.F.C.C.A. updated its online opinions. There are three worth reading for the trial practitioner.

United States v. Curran, ACM 37185 (A.F. Ct. Crim. App. 22 January 2009). This is an interesting issue where the prosecution was allowed to introduce evidence on sentencing about the time and effort involved to investigate the allegations against the accused. The court terms this “Unit Impact Sentencing Evidence,” and of course agree it is admissible. The hasten to add that even if error, the error was nonprejudicial because the defense counsel did a great job of minimizing the impact of the testimony. Before you know it we’ll be punishing accuseds for exercising their constitutional rights — See United States v. Stephens, 66 M.J. 520 (A.F. Ct. Crim. App. 2008).

United States v. Camnetar, ACM 36448, 2009 LEXIS 40 (A.F. Ct. Crim. App. 30 January 2009). The two issues of interest are a suppression motion of CP found on a DVD as well as computer, and whether the defense counsel failed to adequately investigate an alibi. On the suppression, there is an interesting point about the reliability of the “informant.” This is not a true informant case. And of course, even if there is error, the “good faith exception” cures all.

United States v. Douglas, ACM S31059 (A.F. Ct. Crim. App. 28 January 2009). The interesting here is the UCI. The military judge found UCI, but only as to sentencing. A senior enlisted person had discouraged witnesses from coming forward. The M.J.’s remedy was to delay the trial and then have the commander write a letter “inviting and encouraging” unit personnel to come forward. The M.J. also put a MPO on the offending senior enlisted person. The court did find error with the M.J. s ruling that the UCI did not affect the merits. The court acknowledged that a defense of “good military character” could have been available on the merits. But, on the facts, no prejudice. My impression is that there were steps the trial defense counsel could have done to make a better record at trial. They clearly did a great job. An additional non-prejudicial harmless error was the failure of the prosecution to provide discovery of impeachment evidence of a witness. The reasoning appears to be that the defense knew most or more impeachment evidence already. So once again the prosecution is saved by the defense investigation. Once again the prosecution, as is frequent, fails in it’s discovery obligation, but doesn’t have to pay for it. See my earlier post, The Prosecutor’s Gamble, 3 February 2009.