CAAF yesterday granted review of two issues in United States v. Green, No. 09-0523/AF:
I. Whether Appellant was denied his Sixth Amendment right to effective assistance of counsel.
II. Whether the lower court abused its discretion in failing to grant Appellant’s request for CM’s mental health records from Lakeside Behavioral Health System.
AFCCA’s unpublished decision in the case can be found here. United States v. Green, No. ACM 37074 (A.F. Ct. Crim. App. Feb. 10, 2009).
On Wednesday, in a divided decision, CAAF denied leave for Airman Basic Andrew Witt–a military death sentenced prisoner whose direct appeal is now pending before AFCCA (and on whose defense team I serve)–to file an amicus brief in support of granting the second issue in Green. United States v. Green, __ M.J. __, No. 09-0523/AF (Sept. 16, 2009). The majority — consisting of Judges Erdmann, Stucky, and Ryan — denied the motion without comment. Judge Baker, joined by Chief Judge Effron, dissented. Judge Baker wrote:
Airman Basic Witt, an appellant in the Court of Criminal Appeals, requests the opportunity to file an amicus brief to inform this court as to how the issue(s) presented in the instant case will, in his view, impact the broader and uniform application of the law, including in his case. Our rules do not preclude such a filing, nor indicate the standards by which this court should evaluate such a request. In that context, the courthouse door should be open, not closed. As a result, I would grant the motion; the court could then determine what consideration and weight, if any, to give to the filing.