Appellate Leave - Legal Purgatory

Hi, I am Carol Harris. .I am not an attorney only ...

2009-06-16T15:38:53.539-04:00

Hi, I am Carol Harris. .I am not an attorney only Kenny’s mother. I can see how you might have formed your opinion in my son’s case. There are a few things about his “STAR WITNESS” that you should know before calling him a liar. This was a 30 year old man who received a dishonorable discharge. He was also contacted by the police department and asked to come in for an interview about his statement. When he arrived at the police department along with his mother he was questioned in front of his mother and told he was confessing to drug trafficking and an attempt on a sailors life. He was told that if his statement was true it would be forwarded to the Hawaii prosecutor’s office for review. This was in front of his mother. So this young man had to make a choice go to jail or recant his statement. I do have all the audio and hard copies of his whole case and all the files on his appeals. As a long time practicing JAG attorney it might interest you to know that his appeals have been ongoing since 2004 and all of his former JAG attorneys who have been discharged from the Navy are still following his case and were giving him advice until he passed away. Sometimes things are not what they seem on the surface. Sometimes someone is convicted when that person really is innocent. Were you a defense or a prosecutor JAG attorney? There is a lot more to Kenny’s case than showing on those two cases my daughter provided you. It is a very complex case. Not a simple case of a person taking drugs for recreational fun which is still illegal in my book. My son was poisoned with 150 times what is considered a street dose of crystal meth. It was the 3 highest levels in a urine sample that the Navy lab in California had seen. His past attorneys believed he was innocent and he fought for over 5 years to overturn his conviction. He loved the Navy and served it with pride and dignity. Kenny was an E-5 and was up to test for E-6; he was only 25 when this happened to him. He has numerous awards and accommodations for excellent service while in the Navy. Kenny planned to retire from the Navy. He was lucky to survive his tragic poisoning. Maybe you can answer a question for me do appeals for guilty people usually go on for almost 6 years. Just curious or does that show there is some type of problem with his conviction.

I am neither bitter nor affiliated with your broth...

2009-06-16T08:37:45.483-04:00

I am neither bitter nor affiliated with your brother's case. I am, however, a long time practicing attorney and a former JAG officer. Your comments, when read by non-lawyers, could lead people to believe that the appellate leave system deals with guilt or innocence, which it does not. Your continued quoting of U.S. v Ribaudo could easily be taken out of context. The simple fact is that the Ribaudo case has nothing to do with whether or not someone committed a crime. Assuming your brother's appeal had continued, and based on the lower court's review (which I did read), I would be comfortable in saying that there was a 99.9999% probability that the guilty findings would have been upheld. A proceeding being abated simply means that it is being put to an end, and does not mean that the person was not guilty.

Thanks for your contribution to the site! I must ...

2009-06-15T18:36:33.949-04:00

Thanks for your contribution to the site! I must admit though, your comments sound a somewhat bitter. Are you affiliated with the case?

While I respect your opinion, I have not left out any facts. Links to the court documents related to the case were posted on this website on 5/25/2009. You can read them by accessing the post from that date.

Your comment about the conviction is true. But, the nature of the appellate leave process is that the soldier, in this case, my brother, is appealing something, in this case a bad conduct discharge for a drug charge. And, per military regulations, a person who dies on appellate leave has certain rights.

You might be interested to know that he turned down a general discharge in the hopes that he might prove his innocence and that he has been fighting for years in hopes of clearing his name.

While neither you nor I will ever know what really happened on the date of the incident, one thing is for sure. It is not us who decides what benefits Kenny is due. It is military regulation. And, it is not us who decides if an appellate is due benefits. It is the military.

It is also not us who decides guilt or innocence in this case.

Page 7, paragraph 2 of United States, Appellee v. Brandon T. Ribaudo, Private U.S. Marine Corps, Appellate found at the following link (http://www.armfor.uscourts.gov/opinions/2006Term/05-0117.pdf) states, "It is the ‘longstanding and unanimous view of the lower federal courts that the death of an appellant during the pendency of his appeal of right from a criminal conviction abates the entire course of the proceedings brought against him.’ United States v. Moehlenkamp, 557 F.2d 126, 128 (7th Cir. 1977). It is not until that appeal of right is complete that we can rest assured the interests of justice have been served. See United States v. Wright, 160 F.3d 905, 908 (2d Cir. 1998)."

If you have access to a military regulation or a court ruling that states differently, I would be very interested to see it. I want to learn everything I can about this process.

If are affiliated with his case, I am sure that you have access to his military service records. This incident was his first offense in the military. Per those in the Navy we have spoken with (NAMALA, and the Navy Casualty Office), his record prior to this incident was exemplary. He has letters of accommodation and he served his country well both domestically and overseas. I would call that excellence in service and, in my opinion any person who willingly joins the armed forces in support of this country is a Great American.

In fact, if a drug addict picks up a rock on the street and fights a terrorist, he too is a Great American in my book.

Thanks again!
Alicia

An interesting site, but you seem to leave out the...

2009-06-15T16:21:41.422-04:00

An interesting site, but you seem to leave out the fact that your brother was a convicted drug user (crystal meth), and that his conviction has been upheld. Also, it looks like his "star" witness (the one who recanted) was simply a liar. If the appellate leave loophole works for you, that's fine. Spare us the "he was a great American" argument.