WESTLAW now includes three additional published CCA opinions. I can’t call them “new” opinions since one of them – an Air Force Court decision – was released more than a month ago though, you guessed it, it still isn’t up on the Air Force Court’s web site. Interestingly, all three opinions set aside CA’s actions.
Here are the three opinions:
United States v. Martin, __ M.J. ___, 2006 WL 3518250 (C.G. Ct. Crim. App. Dec. 6, 2006) (per curiam). Martin sets aside the convening authority’s action and remands the case for compliance with the Coast Guard Court’s defense-favorable interpretation of an ambiguity in the pretrial agreement’s maximum sentence provision.
(This case has been on the Coast Guard Court’s web site since it was released, but the Coast Guard Court’s web site didn’t indicate that it was a published opinion, so I hadn’t previously written about it.)
United States v. Bakcsi, __ M.J. ___, 2006 WL 3513901 (A.F. Ct. Crim. App. Nov. 29, 2006). Bakcsi is by far the most interesting and important decision of the three. It remanded the case for a new CA’s action because the record contained inadequate proof that the convening authority had actually reviewed all of the clemency materials submitted by the defense. As a lawyer raised in the naval justice system, I found this opinion remarkable. Almost every singe Navy and Marine Corps case that includes an 1105 submission would fail to meet the standard set out in Bakcsi. Navy-Marine Corps Appellate Defense Division counsel should certainly start raising issues before both NMCCA and CAAF based on the standards set out in Bakcsi and the cases it cites. Here’s a flavor of the Air Force Court’s opinion: “In the appellant’s case, we are not convinced that the convening authority considered all of the clemency matters submitted by the defense, even though the convening authority’s initials are on the top line of the defense counsel’s clemency memorandum. This memorandum had two submissions from the appellant listed as attachments. It is not apparent from the record that the convening authority reviewed and considered them. ‘[T]his court will not “guess” as to whether clemency matters prepared by the defense counsel were attached to the recommendation or otherwise considered by the convening authority.’” Id. at *2 (quoting United States v. Craig, 28 M.J. 321, 325 (C.M.A. 1989)).
In language reminiscent of appellate warnings before the courts really began lowering the boom on post-trial delay, the Air Force Court also wrote: “Unfortunately, Craig errors continue to be ubiquitous today, even though this Court cautioned SJAs in 1992 to follow the clear guidance provided by statute, rules, and well-established case law to avoid any question as to whether a convening authority properly considered defense submissions before taking action. Crawford, 34 M.J. at 761-62. It bears repeating that speculation concerning the consideration of such matters simply cannot be tolerated in this important area of command prerogative.”
Rough translation: prepare for more judicial spankings.
United Stats v. Van Vliet, __ M.J. ___, 2006 WL 3513905 (A.F.Ct. Crim. App. Nov. 6, 2006). Van Vliet held that the SJA incorrectly advised the CA that the appellant’s post-trial request to resign in lieu of trial by court-martial could not be processed because it was untimely. The Air Force Court noted that “[a]lthough we will not speculate as to whether the Secretary will approve the appellant’s RILO request, we are convinced that the convening authority did not have the authority to take final action in the appellant’s case while Secretarial action on the appellant’s RILO request was still pending.” Id. at *5.