This coming week, the Judge Advocate General of the Navy will have to decide whether to certify NMCCA’s Wild decision to CAAF. CAAF’s daily journal for 3 December included an order extending the deadline for filing a certificate of review in the case until 21 December 2007. United States v. Wild, __ M.J. ___, No. 08-5001/MC (C.A.A.F. Dec. 3, 2007). But given the normal one-day delay before daily journal items hit CAAF’s web site and CAAF’s closure on 24 December, we likely won’t know what RADM MacDonald decides until Wednesday, 26 December.
Wild is a split unpublished NMCCA decision, available here. United States v. Wild, No. NMCCA 200700108 (N-M. Ct. Crim. App. Oct. 11, 2007). The government lost the original record of trial in the case. Almost two years after the CA acted, three copies of the record — but not the original — showed up at NAMARA. The Navy-Marine Corps Court indicates that it doesn’t appear that any trial participant reviewed the copies or validated their completeness.
Writing for himself and Judge Harty, Judge Kelly set aside the CA’s action and remanded the case for the military judge to authenticate a copy. Senior Judge Rolph dissented. He argued that given the presumption of regularity, the copies should be assumed to be accurate and complete copies of the lost original.
Without the split in the NMCCA panel, I doubt anyone would have seriously thought about certifying this case to CAAF. Any predictions as to whether the Judge Advocate General of the Navy will choose to certify it?