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Court of Appeals for the Armed Forces overturns Navy court-martial conviction due to military judge’s violation of constitutional rights of accused.

Recently, the Court of Appeals for the Armed Forces (CAAF) in United States v. Bess, overturned the conviction of a Naval Hospitalman Second Class based on the military judge’s violation of his Sixth Amendment right to present a full defense.  In this case, appellant was a radiological technician at a Naval Hospital.  He was accused of committing and attempting to commit several indecent acts when he had several female patients completely undress for their x-rays, even though that was unnecessary.  During the court-martial, there was controversy regarding whether appellant was the technician that committed these acts or if it was some other technician.  During panel deliberations after the close of evidence, the court-martial panel asked the military judge if they could see the “muster reports” of the hospital which are a form of attendance records.  These reports were to be used to determine if it was the appellant who was on duty as the technician on the days the women alleged the offenses occurred.  The military judge in the court-martial excused the panel and listened to testimony regarding the records to determine their admissibility.  The military judge determined that the records were admissible and when the court-martial panel returned to the courtroom, the judge gave them the records as evidence to consider.  The military judge did not allow the defense to confront the witnesses about the records in front of the panel members.  The military judge also did not allow the defense to present another closing argument in front of the court-martial panel to address the muster reports.  Appellant appealed to the Navy-Marine Court of Criminal Appeals (N-MCCA) and was denied.  However, on appeal at CAAF, the convictions were overturned.  CAAF found that the military judge’s decision to admit the records into evidence at the court-martial was the correct decision.  However, CAAF found that the military judge denying the appellant the right to cross-examine witnesses regarding the records and to supplement their argument based on the admission of the records was improper.  CAAF found that the military judge violated appellant’s Sixth Amendment right to present a defense.  CAAF held that while the military judge had the discretion to limit the examinations and argument, in this case, the complete denial of the opportunity to conduct cross examination and argument was simply over-the-top.  Finally, CAAF held that the error was not harmless and prejudiced appellant.  Therefore, the convictions were overturned.  This case shows that military judge’s sometimes commit errors leading to a valid appeal.  The case also shows that even when you might think it is over, it may not be.  In this case, the N-MCCA granted appellant no relief, however, CAAF, the highest military criminal appeals court did.  Therefore, persistence and patience sometimes does pay off.  If you or your loved one may have been denied a full and fair opportunity to present a defense during his court-martial, you may have a valid appeal.  Also, if you or a loved one is about to face a court-martial and want to speak with someone with experience, give me a call.  The consultation is free.  To speak to an experienced court-martial and military defense attorney, call Bill Cassara at 706-860-5769 for a free consultation.

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