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case: “WHETHER APPELLANT SUFFERED PREJUDICE, FOR PURPOSES OF ARTICLE 59(a), UCMJ, WHERE THE CHARGE OF RAPE OF A CHILD, WITHDRAWN AND DISMISSED ‘WITH PREJUDICE’ AT APPELLANT’S FIRST COURT-MARTIAL, WAS REINSTITUTED AT APPELLANT’S REHEARING.”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 Here’s a link to NMCCA’s unpublished opinion in the case.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 ACCA’s unpublished opinion in the case is available here.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).