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Decision on appeal

Here are some cases your military defense counsel at court-matial under the UCMJ needs to know about and read.

United States v. Kornickey, (Army Ct. Crim. App. 2023).

Unfortunately the accused here faced a military judge who made legal numerous mistakes in rulings on expert assistance and witness requests. The tragic result was a conviction because of bad judging.

The court does a thorough and useful analysis of expert consultants and witness requests. They point out how the parties and MJ consistently combined the two types of requests and thus confused the two different standards of review for consultants vice witnesses, how the MJ's ruling "which determined appellant engaged in sexual acts with victim after seeing and hearing her clear physical and verbal manifestation of non-consent appears to have accepted full-cloth victim's most favorable version of events, despite defense evidence challenging the validity of her memory and prior inconsistent statements, and ultimately had the effect of pre­determining appellant's guilt as a factual basis for denying him expert assistance." The court citied to several other MJ rulings that exhibited an "erroneous application of the law." And, how the MJ seemed ignore the voir dire answers of the prospective members.

The Army Court of Criminal Appeals set aside the conviction. The question will be whether the Army will continue to prosecute him.

United States v. Causey, __ M.J. ___ (N-M Ct. Crim. App. Mar. 23, 2022).  [https://www.jag.navy.mil/courts/documents/archive/2022/CAUSEY_202000228_PUB-Concur.pdf]

A panel of officer and enlisted members convicted Appellant of attempted sexual abuse by communicating indecent language to “Mackenzie (a fake name),” whom he believed to be a child who had not attained the age of 16 years; attempted sexual abuse by intentionally exposing his genitalia to her; and attempted wrongful receipt of CP by requesting that “Mackenzie” send him digital images of her exposed genitalia and other sexually explicit conduct. and sentenced him to one year confinement and a dishonorable discharge. 

The Appellant raised five issues on appeal.

          (1) The MJ abused her discretion by denying a request for expert assistance.

          (2) The MJ abused her discretion by denying a request for an expert witness.

          In discussing the expert issue, the court stated that the defense had not provided sufficient reasons why a linguistics expert was necessary for the defense. The defense was attempting to argue (as I have done recently in a Navy appeal) that the language used in the sting operation was that of an adult. The idea I believe was to create the impression that the accused thought he was talking with an adult role-playing and not talking with a child.

Here the Navy-Marine Corps Court of Criminal Appeals lays out some useful guidelines on how better to justify getting experts to help in your case. Like the Army Court of Criminal Appeals, the NMCCA has uniformed lawyers who sit in panels of three to hear appeals from Navy and Marine Corps appellants. An appeal can follow with the Court of Appeals for the Armed Forces (CAAF).

          (3) The prosecutor committed prosecutorial misconduct arguing his personal opinion of the evidence and disparaging the defense counsel.

          (4) The prosecutor committed prosecutorial misconduct during sentencing by telling the jury not to consider properly admitted evidence, to consider facts not in evidence, and to give a sentence based on something other than the actual facts of the case.

I am seeing Prosecutors frequently make improper argument or fly the edge in their zeal to get a conviction. Your military defense lawyer ought to be aware of some of the common improper arguments so they can object. One of the usual problems is that the defense doesn't object to improper argument and the appellate court finds the issues is waived. 

         (5) The members should have been required to have a unanimous vote of guilt.

The court reviewing the alleged errors ultimately concluded that most were not errors and the few that were did not prejudice the Appellant. So the findings and sentence were affirmed.

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