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.

5 Responses to “Yesterday’s CAAF decisions”

  1. Cloudesley Shovell says:

    Fact-specific cases seem to be a hallmark of this term. Not that there’s anything wrong with that.

  2. Anonymous says:

    I think the interesting dynamic about Gardinier is the display of the inability of the service court to get it right (or even try). CAAF had to once correct the Army Court on some very obvious errors of law by the trail court, and then CAAF actually had to a harmless error review when the Army court refused to do so. This smackdown of the service court was required mostly becuse the service court refused to do any actual on the record analysis.

  3. Christopher Mathews says:

    What struck me about Gardinier is that CAAF could — and from the standpoint of judicial economy, arguably should — have reached the conclusion it ultimately reached, several years ago.

  4. Anonymous says:

    For those of us who practice at ACCA, there has been a systemic problem for the last 3 or 4 years. The Appellate Judges seem unwilling to apply critical analysis to dubious rulings/decisions by trial judges, and when they are compelled to address an issue, they either misstate the record or, as in Gardinier, sweep everything with the “harmless error” brush.

    It seems that they cannot leave the “advocate” out of their Chambers in attempting to justify affirming convictions. CAAF was actually quite charitable to ACCA under the circumstances.

  5. Anonymous says:

    After reading ACCA’s summary disposition of an Article 62 appeal in U.S. v. McNaughton, I have to agree with what Anonymous said on May 1–there is absolutely NO critical analysis or thinking on the preemption issue presented, and the case law on preemption shows ACCA’s decision is dead wrong! Looks more like ACCA was trying to save the Government from a bad charging decision. I read the Colorado statute at issue–call me crazy, but wouldn’t incest with your child or stepchild be covered under Article 120? I hope this is being appealed to CAAF.