United States v. Gardinier, __ M.J. ___, No. 06-0591/AR (C.A.A.F. Apr. 28, 2009), is a highly case-specific decision in which CAAF unanimously reverses ACCA on a harmless error determination. It doesn’t seek to develop the law; rather, it’s an application of existing law to the specific factual context of the case. Judge Erdmann wrote for the court.
More significant (unless you happen to be Staff Sergeant Gardinier) is yesterday’s decision in United States v. Gladue, __ M.J. ___, No. 08-0452/AF (C.A.A.F. Apr. 28, 2009). The most important lesson of Gladue is that a PTA term that waives all waivable motions will preclude appellate consideration of a multiplicity claim. CAAF split 3-2 over whether a multiplicity claim is waived by such a PTA term even if the military judge doesn’t expressly advise the accused that he or she is waiving all multiplicity claims. Writing for the majority, Judge Stucky says it does. A PTA term that waives “any waivable motions waive[s] claims of multiplicity and unreasonable multiplication of charges and “extinguish[es]” an accused’s “right to raise these issues on appeal.” Id., slip op. at 9. Writing for himself and Chief Judge Effron, Judge Baker says that an appellate court shouldn’t find that such claims are waived where the military judge didn’t so advise the accused. But Judge Baker and Chief Judge Effron concur in the result, concluding that even if the multiplicity issue wasn’t considered waived, it was a loser on appeal.