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Decision on appeal

Here is another case your military defense counsel at court-matial under the UCMJ needs to know about and read.

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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