02 August 2007

Army Released 3 Opinions

On 31 July, the Army Court of Criminal Appeals released 3 opinions:

United States v. Eckard, 20010870 (A. Ct. Crim. App. Jul. 31, 2007)
United States v. Callaway, 20050268 (A. Ct. Crim. App. Jul. 31, 2007)
United States v. O'Reilly, 20050681 (A. Ct. Crim. App. Jul. 31, 2007)

Eckard involved the testimony of a DNA tech at USACIL who was accused of contaminating specimens and misrepresenting tests that he had not performed. In this case, the ACCA determined that the evidence was so overwhelming that the admission of Mr. Mills testimony was harmless.

Callaway is not a pretty case. The judge sentenced the accused to forfeiture of 2/3 pay for 10 months. Now I realize that it if a judge is not really concentrating when he/she announces the sentence and the trial counsel is not paying attention, it is not difficult to forget to say "per month." But one would certainly expect that the judge's training would have covered the need to announce forfeitures in whole dollar amounts. R.C.M. 1003(b)(2). Yet every few years we have a crop of such cases.

Although neither Article 34, UCMJ, nor R.C.M. 406 requires the SJA prepare an SJAR for a case that is referred to special court, an Army Regulation does. But the SJA didn't do one in this case. Nevertheless, the ACCA affirmed. The issue is procedural not jurisdictional, the appellant made no motion at trial, waived the issued by pleading guilty.

By the way, the military judge also forgot to assemble the court. Case must have been tried on a Monday.

In O'Reilly, the military judge refused to admit an Article 15 during the sentencing proceedings because it was not properly authenticated. But the judge then allowed the prosecution to present the testimony of the first sergeant and the commander that the appellant had received an Article 15 for missing a movement, and that occurred after he failed to go on 15 different occasions. ACCA found error--Article 15s are admissible at part of his records. Uncharged misconduct unrelated to the offense of which the accused was convicted was not admissible as aggravation evidence--it did not meet the “directly relating to or resulting from” requirement to be admissible under R.C.M. 1001(b)(4). Same for the admission of results of a positive urinalysis. ACCA loped off 1 month of the 4 month confinement sentence.

No comments: