When I was writing an extended post about remedies for Walters/Seider violations on Friday, I was unaware that on that very day, CAAF had granted review of two Walters/Seider issues arising from naval cases.
The granted issue in United States v. Ross, No. 09-0242/MC, is : “WHETHER, BY FINDING APPELLANT GUILTY OF THE CHARGE AND SPECIFICATION EXCEPT FOR THE WORDS ‘ON DIVERS OCCASIONS,’ THE MILITARY JUDGE RENDERED AMBIGUOUS FINDINGS NOT CAPABLE OF REVIEW UNDER ARTICLE 66, UCMJ, 10 U.S.C. § 866.” I can’t find NMCCA’s opinion in the case anywhere online — including in the formerly comprehensive but now useless Navy Knowledge Online. If anyone has a copy, please e-mail it to us at firstname.lastname@example.org. The wording of the issue makes clear that this is a judge-alone case, so it could present the remedy isuse we discussed regarding Wilson.
The granted issue in United States v. Trew, No. 09-0414/NA, is “WHETHER, IN LIGHT OF UNITED STATES v. WALTERS, 58 M.J. 391 (C.A.A.F. 2003) AND UNITED STATES v. SEIDER, 60 M.J. 36 (C.A.A.F. 2004), THE CHARGE AND SPECIFICATION MUST BE DISMISSED WITH PREJUDICE, BECAUSE THE LOWER COURT COULD NOT CONDUCT A PROPER APPELLATE REVIEW UNDER ARTICLE 66 AND DOUBLE JEOPARDY PREVENTS A REHEARING. SEE UNITED STATES v. WILSON __ M.J. ___ (C.A.A.F. 2009).” NMCCA’s opinion in the case is published at 67 M.J. 603. We briefly discussed Trew here. Like Wilson, Trew was a judge-along court-martial. So if CAAF rules for the defense and CDR Battin is still on the bench, it could also provide CAAF with an opportunity to remand the case for clarification as a remedy for a Walters violation in a judge-alone case.