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.

12 Responses to “Code 46 files writ appeal”

  1. Toussaint-Guillaume Picquet de la Motte says:

    If the MJ did not rule on the record as required the time for the government to appeal, despite their “notice of appeal,” should not run. Appending an email ruling to the ROT is poor form and since Wheeler isn’t that old I am surprised NMCCA was so dismissive.

  2. Anonymous says:

    The problem with “email rulings” is that such a course of action prevents other relevant documents from also becoming part of the ROT – documents that may be helpful to CCA’s detemination of Article 62 appeals. Absent approval by the MJ, TCs and DCs don’t get to append documents such as proposed FOF, objections to proposed FOF . . . to the ROT unless there is an Article 39a session.

    I’m glad to see Code 46 has taken this important issue to the CAAF.

  3. Anonymous says:

    Absolutely ludicrous. Why couldn’t the government simply file under 62, as the court stated they could do? I assume the government expects the trial to be stayed until resolution of the writ issue. So speedy trial concerns don’t exist if the government feels wronged? And what about the limitations of government writ petitions in Will v. United States?

  4. Anonymous says:

    Am I missing something? What speedy trial issue is there in this case?

    NMCCA said the decisions of MJs should be on the record and not in email form.

  5. CAAFlog says:

    1203 Anon, what is this Will v. United States case of which you speak?

  6. Marcus Fulton says:

    I share CAAFlog’s confusion as to why the government wants CAPT Harty to perfect the record against it before they try to appeal. I’ve lost motions in front of Judge Harty before. Sometimes he rules, informing the parties that he will complete his written findings of fact and conclusions of law in a few days. I don’t remember my client’s position ever improving any after I got his written findings. When the judge ruled against the government, he dug a hole for them. Not sure why they insist he pour the concrete before they try to get out.

    As for proposed findings of fact and potential objections to proposed findings of fact, I don’t see why those would matter. First, shouldn’t they have been submitted with the motion? Why submit them after the court decides an issue? At any rate, after a court decides, you have actual findings of fact–much more interesting than proposed findings. And if they’re underdeveloped due to lack of counsel involvement, so much the better if you’re the appellant, in this case the government.

  7. Anonymous says:

    Bottom line, how do you authenticate the record of trial based upon an email ruling? When would the government clock start? When they get the email? When they open it? When it is sent? The law is clear it starts at the judge’s ruling so it makes perfect sense for the government to want that time fixed within the record of trial. And, as best I can tell, the accused has the absolute right to be present in the court-martial when all decisions are made. In this case the government requiring to place his ruling on the record as is required avoids an appellate issue and yet again reminds MJs of their duties.

  8. Marcus Fulton says:

    It looks like in this particular case, the question of timeliness has been settled by CCA, who called their notification “timely.” I doubt that CAAF will contravene RCM 908(b)(4)’s prohibition against further sessions of court for the sake of making a point to MJ’s, especially in the context of a disfavored government writ appeal. I still think the government will be lucky to lose this one.

  9. Anonymous says:

    What do you do when NMCCA clearly states rulings must be on the record and then a scant time later accepts an MJs ruling via email? It seems like the outcome of this case is of little import but the overall requirements is what the government is trying to clear up. As it stands the same court has issued their “reminder” to MJs but then accepted something on contravention of that requirement.

  10. Anonymous says:

    Marcus…it seems to me that CAAF is always looking for a reason to point out NMCCAs errors.

  11. Anonymous says:

    Anon Sun 0645,

    Ahh yes, the popular perception among NMCCA judges that they are the martyrs of CAAF, which seeks fiendish delight in unfairly pointing out their every flaw. I have heard this lamentation from more than one NMCCA judge, including a former Chief Judge.

    Life just isn’t fair, is it? Of course, the quality of the opinions would have nothing to do with this, would it?

  12. John O'Connor says:

    Isn’t it the CAAF’s job to point our errors from the CCAs?