Gonzalez & Waddington – Attorneys at Law

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Borderline Personality Disorder & False Accusations in Military Sexual Assault Cases


Purpose. Corrective, clean-up the record, fix obvious errors, and inquire into new matters affecting findings or sentence.

  • Hearing. Article 39(a) session or proceeding in revision directed by the military judge or the convening authority.
  • Time. Military judge – any time before the record is authenticated. Convening Authority – before initial action or if directed by a reviewing authority. R.C.M. 1102(b)(2) & (d).
  • Grounds
    1. Investigate alleged court member misconduct. United States v. Stone , 26 M.J. 401 (C.M.A. 1988). Post-trial allegations by appellant’s father concerning laughter and festive atmosphere within the deliberation room and an improper comment by a court-member made during a recess. A post-trial hearing was not required in this case, but court indicates that it is an appropriate mechanism in such cases.
    2. Change plea when alleged cocaine was caffeine. United States v. Washington , 23 M.J. 679 (A.C.M.R. 1986), rev. denied , 25 M.J. 197 (C.M.A. 1987). Cocaine was caffeine. A post-trial session was appropriate.
    3. Lost tapes of the announcement of findings and sentencing proceedings. United States v. Crowell , 21 M.J. 760 (N.M.C.M.R. 1985), rev. denied , 23 M.J. 281 (C.M.A. 1986). A post-trial session, before authentication of the record, was appropriate to recreate lost verbatim tapes.
    4. Newly discovered evidence. a. United States v. Scaff , 29 M.J. 60 (C.M.A. 1989). “Article permitting MJ to call court into session without presence of members at any time after referral of charges to court-martial empowers judge to convene post-trial session to consider newly discovered evidence and to take whatever remedial action is appropriate.” Until he authenticates the record, the MJ can set aside the findings of guilt and sentence. If the convening authority disagrees with the MJ, the only remedy is to direct trial counsel to move for reconsideration or to initiate government appeal. See United States v. Meghdadi , 60 M.J. 438 (C.A.A.F. 2005) (military judge abused his discretion in denying appellant’s motion for a post-trial 39(a) session to inquiry into newly discovered evidence and fraud on the court). b. United States v. Fisiorek , 43 M.J. 244 (C.A.A.F. 1995) (MJ applied incorrect legal standard in denying accused opportunity to reopen case to present newly discovered evidence).

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