CAAFlog
  • Home

CAAFlog

A Visit to Pandemic CAAF

12/1/2020

1 Comment

 
This morning I enjoyed a nostalgic in-person visit to CAAF's arguments, which had an elevated quality thanks to excellent counsel (especially for Upshaw).

I ran into Upshaw's attorneys on the stairs and we had an interesting discussion about Judge Sparks's line of questioning. The conundrum is this: how can an error be tested for whether or not it meets a burden (HBRD) if the error is itself an erroneous description of a burden (Hills--preponderance for past acts). See Sullivan v. Louisiana, 508 U.S. 275, 281 (1993) ("[T]he essential connection to a 'beyond a reasonable doubt' factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury's findings. A reviewing court can only engage in pure speculation—its view of what a reasonable jury would have done. And when it does that, 'the wrong entity judge[s] the defendant guilty'” ) (erroneous reasonable doubt instruction is structural error).

Brenner Fissell

EIC

1 Comment
William E. Cassara
12/1/2020 05:00:10 pm

Disclaimer: I represented Upshaw in his original appeal. The question Judge Sparks poses is one I have been asking for a while. Hope it gets answered.

Reply

Your comment will be posted after it is approved.


Leave a Reply.

    Picture
    Picture
    Picture
    Links
    CAAF
    -Daily Journal
    -Current Term Opinions
    ACCA
    AFCCA
    CGCCA
    NMCCA
    Joint R. App. Pro.
    Global MJ Reform
    LOC Mil. Law
    Army Lawyer
    Resources

    Categories

    All
    Daily Journal
    MJ Reform
    Question Time
    Scholarship
    Top Of The Year 2021
    Unanimous
    Week In Review

    Archives

    April 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    September 2020
    August 2020
    July 2020
    June 2020

The views expressed on this website are expressed in the authors' personal capacities.
Proudly powered by Weebly
  • Home