Interesting CAAF order [Updated]
It appears that sometime around the Marine Corps’ birthday, there was a shift in CAAF’s practice. Before then, the court routinely granted motions to attach documents while occasionally denying such motions. After then, the court routinely denied motions to attach documents while occasionally granting such motions. But yesterday, CAAF issued a 3-2 order to grant such a motion.
On 15 June 2009, SrA Colvano’s appellate defense counsel moved to file a declaration from a psychologist describing her diagnosis of the appellant’s PTSD and explaining his condition’s and medication’s effect on the appellant’s behavior. The government opposed the motion.
Yesterday, CAAF summarily granted the motion. United States v. Colvano, __ M.J. ___, No. 09-0597/AF (C.A.A.F. Jan. 28, 2010). But Judge Ryan, joined by Judge Erdmann, dissented. Here’s their reasoning:
Article 67(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(a) (2006), authorizes this Court to “review the record” in certain cases. The attachment at issue is not part of “the record”: it was presented neither at trial nor at the Court of Criminal Appeals (CCA). Appellant gives no reason for his failure to add this material to the record before now.
C.A.A.F. R. 30A(a) recognizes that we “will normally not consider any facts outside of the record established at the trial and the Court of Criminal Appeals.” Since this limitation is consonant with Article 67, UCMJ, it seems a prudent rule. Nothing indicates that the circumstances under which this attachment is presented are extraordinary: Appellant asserts that the document he seeks to attach is “necessary to show . . . what contributed to [his] negative behavior, the severity of his PTSD, and his need for continued therapy,” but he proffers no reason, let alone good cause, for failing to present it to the CCA. Before we depart from the “normal” practice memorialized in Rule 30A(a), a movant must show that his situation is somehow unusual. Because Appellant has not done so, I would follow the mandate of Article 67, UCMJ, and the “normal” practice discussed in Rule 30A(a) and deny the motion.
Interestingly, in another order issued yesterday, CAAF granted an appellant’s motion to attach an affidavit without dissent. United States v. Perry, __ M.J. __, No. 10-0074/AR (C.A.A.F. Jan. 28, 2010).
Is CAAF a court of limited jurisdiction that exists to conduct legal review of court-martial convictions, or does it exist to provide civilian court supervision of the military justice system? Seems to still be leaning in the “supervision” direction, though perhaps not so starkly as in the past.
Also, if CAAF did not rule until after the gov’t filed an opposition to the motion, did CAAF really “summarily” grant the motion? Maybe the word does not mean what I think it means.
My dear Admiral,
I meant that CAAF granted the motion without explanation. Here’s the portion of the order granting the motion, in its entirety: “That said motion is hereby granted.”
Some things aren’t worth writing a dissent over. Jesus.
Cloudesley:
Glad to have you back.
My good sir,
Of course, you are correct! I should not parse English after a jolly evening at the pub.
Yrs humbly,
CS
PS. Mr. Emoticon–Yes, a dissent in a motion seems a waste of time, except when it concerns the scope of Art. 67 (aka jurisdiction), a little matter that has grabbed some attention of late.