Here’s something rarely seen: the government filed a writ appeal at CAAF this week. On Wednesday, CAAF docketed United States v. Harty, __ M.J. ___, Misc. No. 08-8024/NA (C.A.A.F. Aug. 20, 2008). I’ve posted NMCCA’s one-page order denying the government’s petition for a writ of mandamus here. United States v. Harty, No. NMCCA 20080604 (N-M. Ct. Crim. App. Aug. 6, 2008).
NMCCA’s order is cryptic, so I’ll tell you what little I know. If you know more than I and see that I’ve gotten something wrong or omitted something important, please comment below.
Judge Harty e-mailed counsel a ruling apparently excluding certain evidence from the court-martial case of United States v. Tucker. (I have no idea what that underlying ruling is about.) The government wants to file an Article 62 appeal to challenge that ruling. But the government wants Judge Harty to go on the record to enter the ruling in an Article 39(a) session rather than ruling by e-mail. Judge Harty declined the government’s invitation to go on the record. The government then apparently filed a notice of appeal at NMCCA. But the government apparently still wants Judge Harty to go on the record to enter the ruling and filed a petition for extraordinary relief at NMCCA asking that court to order Judge Harty to do so. NMCCA denied the request, observing that “the Government filed a timely notice of appeal within 72 hours of receipt of the military judge’s ‘informal ruling by email,’ thereby preserving the right to appeal under Article 62, UCMJ.” Harty, No. NMCCA 20080604, slip op. at 1 n.1.
Code 46 has now appealed that denial to CAAF, asking that court to “reverse the decision of the lower court and direct the lower court to order [Judge Harty] to schedule an Article 39(a) session to place his ruling on the Government’s motion to admit on the record. This Article 39(a) session will properly commence the Government’s appeal timeline pursuant to R.C.M. 908.”
This litigation calls to mind NMCCA’s recent admonition about practicing e-mail law:
We appreciate the military judge’s efforts to keep this case moving along, and understand his use of e-mail to aid him in that effort. However, we caution all military judges that they must make all rulings of the court a part of the record, including factual issues involved in determining a motion. See R.C.M. 905(d). We will only give deference to the military judge’s ruling when he or she indicates on the record an accurate understanding of the law and its application to the relevant facts. United States v. Briggs, 64 M.J. 285, 287 (C.A.A.F. 2007)(citing United States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002)).
United States v. Wheeler, 66 M.J. 590, 593 n.5 (N-M. Ct. Crim. App. 2008). But given this threat to treat military judges’ rulings less deferentially if made by e-mail rather than on the record, one would think it would be the defense, not the government, trying to get the military judge on the record to bolster his suppression ruling.