29 June 2007

Duty to Cite Contrary Case Law

Corporal Robinson was carrying on an affair with the wife of a fellow Marine who was deployed to Iraq. The appellant’s commander discovered the affair and ordered Corporal Robinson to have no further contact with her. Two days after receiving the order, Corporal Robinson engaged in sexual intercourse with the woman at her residence on the military installation. For the first time on appeal, the appellant alleged the commander who issued the order was disqualified from convening the court-martial because it raised “at least the appearance that [LtCol Knapp] improperly influenced the court-martial proceedings, therefore disqualifying him as a convening authority."

The NMCCA looked for evidence that, “under the particular facts and circumstances... a reasonable person would impute to him a personal feeling or interest in the outcome of the litigation. United States v. Jeter, 35 M.J. 442 (C.M.A. 1992) (quoting United States v. Gordon, 2 C.M.R. 161, 166 (C.M.A. 1952))." The NMCCA found no evidence that LtCol Knapp had a personal feeling or interest in the outcome of the case and affirmed.

In footnote 1, the court found "unacceptable" appellate defense counsel’s failure “to cite most of the pertinent case law regarding whether the convening authority in this case is an accuser. We remind all counsel that they are ‘not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities.’ Judge Advocate General Instruction 5803.1C, Rule 3.3, Comment 2 (9 Nov 2004).”

United States v. Robinson, NMCCA 200602201 (N-M. Ct. Crim. App. Jun. 6, 2007)

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