CAAF today ordered oral argument in the Wuterich case on 17 September 2008. United States v. Wuterich, __ M.J. ___, No. 08-6006/MC (C.A.A.F. July 23, 2008) (order). Here’s a link to CAAF’s order.
CAAF consolidated the direct review of NMCCA’s Article 62 appeal decision in United States v. Wuterich, 66 M.J. 685 (N-M. Ct. Crim. App. 2008), and the separate petitions for extraordinary relief filed by CBS and SSgt Wuterich’s counsel. CAAF ordered Code 46 to file a consolidated answer no later than 22 August and gave CBS and SSgt Wuterich’s counsel 10 days to file their replies.
But here’s one of the most interesting aspects of the order: it doesn’t expressly grant SSgt Wuterich’s petition to review NMCCA’s opinion. That could have implications for Supreme Court review. 28 USCS § 1259(3) gives the Supremes jurisdiction to review cases in which CAAF “granted a petition for review under section 867(a)(3) of title 10.” But for CAAF’s ruling on a petition for extraordinary relief to qualify for Supreme Court review under 28 USCS § 1259(4), CAAF must have “granted relief.” Because CAAF didn’t formally grant the petition for review, it doesn’t appear that CAAF has opened the § 1259(3) door to the Supremes.
If CAAF doesn’t grant SSgt Wuterich’s petition for review at any point, then the case could qualify for Supreme Court review only under § 1259(4). But the ability to go to the Supremes under that subsection would be unequal. The government could file a cert petition if it loses, since CAAF would have granted relief, but neither SSgt Wuterich nor CBS would be able to file a cert petition if they were to lose, since then no relief would have been granted. CAAF could eliminate this disturbing disparity by expressly granting SSgt Wuterich’s petition for review of NMCCA’s ruling on the Article 62 appeal.