United States v. WittIn 2005, a general court-martial consisting of officer members convicted Senior Airman Andrew P. Witt (Appellant), contrary to his pleas, of one charge and two specifications of premeditated murder; and one charge and specification of attempted premeditated murder. The panel sentenced Appellant to death. Witt's appeal bounced up and down resulting in a resentencing hearing, because of IAC during sentencing. Witt is now sentenced to LWOP. The issue in Witt is prosecutorial misconduct during the sentencing argument and prejudice. The granted issue is, During sentencing proceedings the trial counsel urged the panel members to consider how the sentence they imposed would reflect on them personally and professionally, and suggested that the members would be responsible for any harm Appellant committed in the future. Did the trial counsel’s sentencing argument constitute prosecutorial misconduct that warrants relief? We are told that,
Micheal S. Pardo, What Makes Evidence Sufficient? 65 ARIZ L. REV. 431 (2023). When is a party’s evidence sufficient in a civil case? When is the prosecution’s evidence sufficient in a criminal case? The answers to these questions play several important roles—both practical and constitutional—throughout civil and criminal litigation. As a practical matter, a judicial determination that evidence is insufficient may end a case pre-trial (for example, at summary judgment); may end a trial without getting to a jury (resulting in a judgment as a matter of law); or may overturn a jury’s verdict in a civil case or a guilty verdict in a criminal case. As a constitutional matter, the right to a jury trial in civil cases depends on whether parties have sufficient evidence to get to trial, and criminal defendants have a due process right to not be convicted based on insufficient evidence. Despite the importance of the sufficiency issue, the legal doctrine separating sufficient from insufficient evidence is imprecise and unclear, and judicial reasoning applying the doctrine in particular cases is often frustratingly opaque. United States v. MaysThe Appellant was twice seen holding a cellphone over a shower stall in the SLU while a male was showering. He was charged with attempted wrongful, knowing, nonconsensual view of a person's private area, where there was an expectation of privacy. No-one could testify about what the cellphone screen showed and forensic analysis of the phone could not find any relevant evidence. Although, perhaps as circumstantial evidence, there was evidence of water damage to the cellphone. The Appellant's theory at trial and on appeal was the lack of legal sufficiency because viewing the person by cellphone image was different from viewing the actual person. ACCA rejected that theory because the cellphone "facilitated" the wrongful viewing. The granted issue was WHETHER THE OFFENSE OF INDECENT VIEWING UNDER UCMJ ART. 120C INCLUDES VIEWING OF A VISUAL IMAGE OF THE PRIVATE AREA OF ANOTHER? The CAAF agrees with ACCA. The "real-time" viewing facilitated through the cellphone makes this different from later viewing an image or video that has previously been recorded. The attempt charge is valid because the Appellant only stopped one of the times because he saw a potential witness and fled the scene--some consciousness of guilt there. We acknowledge that a distinction can be drawn between the private area of a person and a visual image of the private area of person. But that is not the question in this case. The question in this case is whether the meaning of the term “viewing” in Article 120c(a)(1), UCMJ, is broad enough to cover both viewing the private area and viewing a contemporaneously produced visual image of the private area of a person. For the reasons explained above, we have concluded that it is. Memo to the field: One last point requires attention. Although we hold that the evidence was legally sufficient for the military judge to find Appellant guilty of the two specifications of As an aside there is a helpful discussion of the rule of lenity with reference to Muscarello v. United States, 524 U.S. 125, 138-39 (1998).
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