CAAF granted review of two cases on Thursday — one a Marine Corps case and the other from the Army.

Here’s the issue in the Marine case: “WHETHER APPELLANT SUFFERED PREJUDICE, FOR PURPOSES OF ARTICLE 59(a), UCMJ, WHERE THE CHARGE OF RAPE OF A CHILD, WITHDRAWN AND DISMISSED ‘WITH PREJUDICE’ AT APPELLANT’S FIRST COURT-MARTIAL, WAS REINSTITUTED AT APPELLANT’S REHEARING.” United States v. Smead, __ M.J. ___, No. 08-0376/MC (C.A.A.F. Oct. 9, 2008). Here’s a link to NMCCA’s unpublished opinion in the case. United States v. Smead, No. NMCCA 200201020 (N-M. Ct. Crim. App. Jan. 10, 2008). And here’s my favorite sentence from that opinion: “Despite the Government’s concession on this issue, we find this assignment of error to be without merit, see United States v. Madigan, 54 M.J. 518, 521 (N.M.Ct.Crim.App. 2000), and will not discuss it further.” Id., slip op. at 9-10. (That sentence concerning a UMC issue, not the issue granted by CAAF.)

The other granted case presents this issue: “WHETHER, AFTER FINDING THE EVIDENCE FACTUALLY INSUFFICIENT TO SUPPORT A FINDING OF GUILTY TO CHARGE III AND ITS SPECIFICATION (RESISTING APPREHENSION), THE COURT OF CRIMINAL APPEALS COULD AFFIRM A FINDING OF GUILTY TO A LESSER INCLUDED OFFENSE ON A THEORY NOT PRESENTED TO THE TRIER OF FACT.” United States v. Miller, __ M.J. ___, No. 08-0580/AR (C.A.A.F. Oct. 9, 2008). ACCA’s unpublished opinion in the case is available here. United States v. Miller, No. ARMY 20060224 (A. Ct. Crim. App. Mar. 24, 2008).

4 Responses to “Grants”

  1. Anonymous says:

    Just so I understand the Miller decision:

    He didn’t do what he was convicted of but we figure he did something else, so we will burn him for that on appeal without notice or trial and screw double jep.

    Do I have that right?

  2. Anonymous says:

    What’s wrong with this? If you get referred to CM, you’re going down one way or the other and rightfully so. If you didn’t do anything wrong, you’d probably just get an Article 15.

  3. No Man says:

    My last comment was incomprehensible BlackBerry gobbly-gook. So let me re-phrase:

    Can someone answer this question for me, which might be the result of not having litigated at NMCCA in 4 years. How could NMCCA’s original Smead opinion have said anything, with authority, about the charges dismissed with prejudice when NMCCA only has authority to act on findings and sentences approved by the CA? So what authority did the government have to rejuvenate the charges? Maybe I am missing something and this is more complex.

  4. Anonymous says:

    Smead has the potential to be an interesting issue. I do have one question for NM readers, the NM opinion states at the original CM the charges were “withdrawn and dismissed ‘with prejudice’ after the appellant successfully entered pleas of guilty.” Not to elevate form over substance, but is this an accurate description of what occurred? Were the charges withdrawn or dismissed?