Judges in Milwaukee hear arguments in court-martial appeals case

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The five judges for the U.S. Court of Appeals for the Armed Forces heard oral arguments Tuesday for the court martial appeal of a U.S. Air Force sergeant convicted of sexually assaulting two girls and endangering his baby son.

A jury in October 2012 had convicted Staff Sgt. Joshua Plant of sexually assaulting 16- and 15-year-old girls at a party in his home and endangering his 13-month-old son, who was asleep in a room during the party. Both girls were unconscious, intoxicated, and had used cocaine, according to court documents.

Plant was dishonorably discharged and sentenced to 12 years of confinement and demoted four pay grades below staff sergeant to airman basic, which is the Air Force equivalent of a private.

Plant had appealed to the lower court, the U.S. Air Force Court of Criminal Appeals, arguing the sentence was inappropriately severe and challenging the factual basis for the child endangerment charge.

But Philip Cave argued for Plant in Tuesday’s oral arguments, challenging the child endangerment conviction because the government had not proven that Plant’s alcohol use directly resulted in endangerment and instead focused on the sexual assaults and the drug use that had no relation to Plant’s alcohol use.

Cave said there was evidence that Plant was not neglectful of the child, including that Plant told his guests to be quiet so as not to wake the child. Moreover, Cave argued that there was no reasonable probability of harm to the child, and there was no connection between the charge and the fact that Plant was drunk.

But Judge Margaret Ryan questioned that argument.

“What if the child had started to choke?” she asked. “What if the child needed to go to the ER?”

Thomas Alford, representing the U.S. government, argued that the sexual assaults and the drug use that happened during the party showed how Plant’s judgment was impaired by the alcohol use. He noted that Plant had about two to three drinks per hour over seven hours, which meant Plant had 21 drinks.

But Judge Ryan also questioned Alford’s argument, noting that the government’s argument assumed that something catastrophic could have happened. For example, she noted that Plant may not have been able to feed the child, but the child likely would not have starved to death in one night.

Joshua Bryant, a third-year law student at Marquette, argued amicus curiae in support of Plant.

Marquette University Law School hosted the oral arguments at Eckstein Hall as part of the U.S. Court of Appeals for the Armed Forces’ judicial education program.

After the court was adjourned, attendees asked the court general questions and Dean Joseph Kearney was presented with a lithograph from the U.S. Court of Appeals for the Armed Forces.

The U.S. Court of Appeals for the Armed Forces hears appeals from the Army, Navy-Marine Corps, Air Force and Coast Guard Courts of Appeals. If the U.S. Court of Appeals for the Armed Forces rules against Plant, he may appeal to the U.S. Supreme Court.

The five civilian judges for the U.S. Court of Appeals for the Armed Forces are appointed by the president for 15-year terms.

Judge Scott Stuckey said military death penalty cases are rare and that the last military execution was performed in 1961. The military code requires the president to order the execution of a capital sentence. According to Chief Judge James Baker, there are six military service people on death row.