There’s an old joke that goes, “Contrary to popular belief, a yellow light doesn’t mean, ‘Speed up; the next one’s red.'”
Please Shepardize United States v. Usry, 9 M.J. 701 (N.C.M.R. 1980). What is the first thing you see? Right, a yellow triangle at the top. Then what is the very first thing you see under “Citing Decisions”? “Criticized by: United States v. Baier, 60 M.J. 382, 2005 CAAF LEXIS 1 (C.A.A.F. 2005) 60 M.J. 382 p.385.” If you were a CCA judge, don’t you think you would look up a CAAF case criticizing Usry before citing it? Of course you would. So how can it be that Judge Per Curiam of the Navy-Marine Corps Court relied on Usry in United States v. Mitchell, No. NMCCA 200600998 (N-M. Ct. Crim. App. March 29, 2007) (per curiam)? (Mitchell is another case that is available on NKO, but not on NMCCA’s web site, so I’ve reproduced it on CAAFlog’s web page.) My question isn’t a rhetorical one. Are some NMCCA decisions issued without Shepardizing the authorities they cite?
If so, at least we know that CAAF Shepardizes the opinions that the CCAs cite. Just as CAAF summarily reversed NMCCA’s decision in United States v. Ryan, No. NMCCA 200401577 (N-M. Ct. Crim. App. March 29, 2007), for relying on the discredited Usry analysis, now CAAF has summarily reversed Mitchell — which NMCCA decided on the same day as Ryan. United States v. Mitchell, __ M.J. ___, No. 07-0602/NA (C.A.A.F. Sept. 13, 2007) (summary disposition). When we discussed Ryan here, a perceptive commentator noted that NMCCA had made the same mistake in many cases. So Ryan and Mitchell are probably the first in a longer line of summary reversals.