Here is how I would analyze the issue if Guert Gansevoort were to be posthumously promoted to Judge Advocate General of the Navy and appointed me to NMCCA. (I know, I know — technically “assigned me to NMCCA.” See Edmond v. United States, 520 U.S. 651, 658 (1997) (“Under the Appointments Clause, Congress could not give the Judge Advocate General power to ‘appoint’ even inferior officers of the United States; that power can be conferred only upon the President, department heads, and courts of law.”).)
Article 62 provides that the government may appeal “[a]n order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.” 10 U.S.C. § 862. So the question becomes whether a mistrial “terminates the proceedings with respect to a charge or specification.” And the answer to that question appears to be shrouded in ambiguity. R.C.M. 915 governs mistrials. The discussion to the Rule (which, of course, is non-binding) says that “a mistrial is appropriate when the proceedings must be terminated because of a legal defect, such as a jurisdictional defect, which can be cured . . . .” R.C.M. 915(a) discussion (emphasis added). So the 1984 Manual’s drafters apparently understood a mistrial to be included in Article 62’s “terminates the proceedings” criterion. (For you Chevron aficionados, the drafters’ analysis isn’t entitled to deference. First, as Justice Scalia has observed, “we have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference.” Crandon v. United States, 494 U.S. 152, 177 (1990) (Scalia, J., concurring); accord Gonzales v. Oregon, 546 U.S. 243, 263 (2006). Second, the Manual’s discussion itself eschews the notion that the discussion constitutes an agency interpretation of the UCMJ. See Manual for Courts-Martial, United States, Pt. I, ¶ 4 discussion (2005 ed.) (noting that the discussion and other supplementary materials in the MCM “do not constitute the official view of the Department of Defense, the Department of Transportation, the Department of Justice, the military departments, the United States Court of Appeals for the Armed Forces, or any other authority of the Government of the United States”).)
But the discussion to R.C.M. 915 also provides that “[u]pon declaration of a mistrial, the affected charges are returned to the convening authority who may refer them anew or otherwise dispose of them.” Consistent with this discussion, military appellate courts have recognized a convening authority’s power to re-refer charges that have been the subject of a mistrial. See, e.g., United States v. Seward, 49 M.J. 369 (C.A.A.F. 1998); United States v. Blackett, 62 M.J. 625 (N-M. Ct. Crim. App. 2006). Given the possibility of re-referring charges to another court-martial, have proceedings been terminated by a mistrial? If Article 62 used the phrase, “a proceeding,” it would seem apparent that the answer is yes. But because Article 62 speaks of a ruling “which terminates the proceedings with respect to a charge or specification,” 10 U.S.C. 862 (emphasis added), the answer isn’t clear to me. After all, further proceedings are authorized, so all proceedings haven’t been terminated.
Because I find the statutory language to be ambiguous, it is appropriate to consult canons of construction. And here the canons speak without ambiguity. As the Navy-Marine Corps Court itself has held, statutes authorizing government appeals “are construed strictly against the right of the prosecution to appeal.” United States v. Pearson, 33 M.J. 777, 779 (N.M.C.M.R. 1991). Senior Judge Mitchell’s opinion for the Navy-Marine Corps Court explained, “Because these statutes compete with speedy trial and double jeopardy protection as well as judicial impartiality and piecemeal appeal policies, prosecution appeals are not particularly favored in the courts.” Id. at 779. Indeed, the Supremes have similarly observed that “in the federal jurisprudence, at least, appeals by the Government in criminal cases are something unusual, exceptional, not favored.” Will v. United States, 389 U.S. 90, 96 (1967) (quoting Carroll v. United States, 354 U.S. 394, 400 (1957)).
So I would resolve Article 62’s ambiguity by following the canon that statutes authorizing government appeals are strictly construed against the right to appeal and therefore resolve the ambiguity by holding that where the government may refer the affected charges to another court-martial (as would also occur where, for example, a military judge dismisses charges on speedy trial grounds without prejudice), the government does not have a right to an Article 62 appeal.
The intriguing Dossey opinion generates a few additional thoughts. First, while NMCCA’s opinion raises fascinating legal issues, if CAAF were to conclude in Lopez de Victoria and Michael that it has no Article 67 power to “act” on a Court of Criminal Appeals’ ruling on an Article 62 appeal, the government could potentially challenge this ruling only by filing a rare government petition for extraordinary relief at CAAF. (Because the case can be re-referred, such a writ would likely lie within CAAF’s potential appellate jurisdiction and could lead to CAAF reviewing NMCCA’s opinion.) Second, why is such an intriguing opinion not published? Third, to beat a horse on which I frequently flail, why have three business days passed without this intriguing opinion — as well as a published NMCCA opinion in another Article 62 appeal released the same day — being uploaded to either NMCCA’s web site or LEXIS? These are important decisions that everyone who follows military justice should know about. These opinions’ availability shouldn’t be hostage to the fortuity that a barely-technically-proficient Unfrozen Caveman Lawyer happens to have access to both NKO and a web site.