In United States v. Pearson, the Navy-Marine Corps Court explained that “prosecution appeals are not particularly favored in the courts” because they “compete with speedy trial and double jeopardy protection as well as judicial impartiality and piecemeal appeal policies.” 33 M.J. 777, 779 (N.M.C.M.R. 1991).
The government’s appeal in Wuterich certainly appears to vindicate the Navy-Marine Corps Court’s speedy trial concern.
Charges against SSgt Wuterich were referred on 27 December 2007. On 17 January 2008, the prosecution issued a subpoena to CBS News for outtakes of Scott Pelley’s interview with SSgt Wuterich for 60 Minutes. On 22 February, the military judge quashed the subpoena and three days later the prosecution filed its notice of appeal. The case has now been on hold for longer than four months, with a final resolution of this issue nowhere in sight.
The government filed its notice of appeal with NMCCA on 17 March and then filed its actual appeal on 7 April. NMCCA granted the appeal on 20 June. United States v. Wuterich, __ M.J. ___, No. NMCCA 200800183 (N-M. Ct. Crim. App. June 20, 2008). While the defense had either 30 days to seek reconsideration in panel or en banc or 60 days to petition CAAF, it filed its petition with CAAF 10 days after NMCCA’s ruling (which, because NMCCA issued its ruling on a Friday, was only the 6th business day after NMCCA’s ruling). United States v. Wuterich, __ M.J. ___, No. 08-0681/MC (C.A.A.F. June 30, 2008).
Now one of three things will likely happen: (1) CAAF will grant SSgt Wuterich’s petition and resolve the merits of the case by reversing NMCCA; (2) CAAF will grant SSgt Wuterich’s petition and resolve the merits of the case by affirming NMCCA; or (3) CAAF will decline to review the issue.
Given the importance of the issues involved, one wouldn’t expect CAAF to rush a decision on the merits if it follows options (1) or (2). If option (1) is the end result, then SSgt Wuterich’s case will have been delayed for well more than half a year for no purpose. Worse still, even if he ultimately prevails on this Article 62 appeal, as a result of this litigation SSgt Wuterich may end up losing his two military defense counsel, both of whom are scheduled to retire on 1 August as reported by the Meridian Record-Journal here. 1 August is just one day after the government’s answer to SSgt Wuterich’s supplement will likely be due under the briefing schedule. See United States v. Wuterich, __ M.J. ___, No. 08-6006/MC (C.A.A.F. July 1, 2008).
If either option (2) or (3) results, a final resolution is even further away. Remember that NMCCA didn’t order CBS to actually produce the outtakes. Rather, it ordered more factfinding. Here’s the relevant portion of NMCCA’s decretal paragraph:
Prior to ruling on the CBS motion to quash, we direct the military judge to conduct additional fact-finding to (1) fully develop the record on the contents of the audio-video material, including an in camera review of any material over which CBS asserts privilege; (2) if, based on the facts developed, a determination is made that undisclosed audio-video material is relevant and necessary, the military judge will then develop the factual and legal basis for any CBS refusal to comply with the federal subpoena issued to obtain the material; and (3) taking into consideration protective measures available to the military judge, address whether, and to what extent, any asserted “news-gathering” privilege applies to limit or preclude disclosure of necessary evidentiary audio-video material in this case.
Wuterich, No. NMCCA 200800183, slip op. at 10-11. If NMCCA’s opinion is ultimately affirmed, those additional factfinding proceedings will likely be lengthy. If they are again resolved in CBS’s favor, will the government file yet another Article 62 appeal, using NMCCA’s first Wuterich opinion to establish the appellate jurisdiction necessary to do so? And if the issue is resolved against CBS, does anyone think that CBS will simply hand over the materials to the prosecution? Doesn’t it seem more likely that CBS will seek an order from an Article III court to trump any ruling against it? Doesn’t it seem quite possible that CBS will obtain an injunction blocking any obligation to cough up the outtakes while the Article III proceedings are underway? And doesn’t it seem possible that if NMCCA’s opinion is upheld at CAAF, CBS will seek such an injunction before it’s required to even give the outtakes to the military judge for an in camera review?
It isn’t difficult to envision the interlocutory proceedings in this case stretching out for months and months to come. In fact, it’s difficult to imagine that they won’t.