The Judge Advocate General of the Army yesterday certified this issue to CAAF:

WHETHER THE RESTRICTIONS UNDER R.C.M. 1001(B)(5)APPLY TO REBUTTAL EVIDENCE SUBMITTED UNDER R.C.M. 1001(D) AND WHETHER THE U.S. ARMY COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE MILITARY JUDGE COMMITED [SIC] PLAIN AND OBVIOUS ERROR WHEN HE PERMITTED INTRODUCTION OF GOVERNMENT REBUTTAL TESTIMONY TO DEFENSE “RETENTION EVIDENCE” WHEN THERE WAS NO DEFENSE OBJECTION.

[BTW, the “[sic]” is CAAF’s, not mine.]  United States v. Eslinger, __ M.J. ___, No. 11-5002/AR (C.A.A.F. Oct. 12, 2010).  This appears to be a cross-certification; I’m not sure if I’ve seen one of those before.

On 10 September, CAAF had granted the defense’s petition on this issue:

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY PERMITTING THE GOVERNMENT TO OFFER EVIDENCE IN THE FORM OF OPINION TESTIMONY FROM SENIOR OFFICER AND NCO WITNESSES WITH NO PERSONAL KNOWLEDGE OF APPELLANT’S DUTY PERFORMANCE TO OPINE THAT HE SHOULD BE SEPARATED FROM THE ARMY AND SPECIAL FORCES.

ACCA’s en banc opinion is available at 69 M.J. 522.  ACCA held that the erroneous admission of the opinion testimony was clear and obvious, but it wasn’t prejudicial and hence didn’t satisfy the plain error test.

9 Responses to “New certified issue”

  1. Grammer Police says:

    sic…LOL!

  2. Ama Goste says:

    I hope your pseudonym is a joke, Grammer (sic).

    On a more serious note, is it just me, or are there a lot more TJAG certification cases these days?

  3. who's your daddy says:

    Interesting question. Somebody like Dwight can probably – eventually – quantify the answer with actual facts. Before then, i’d say that while this is an Army case, the NMCCA is far more active (actually oral arguments, dissents (more than one judge reading the ROT), and even en banc decisions). They are no longer a one-way Gov’t speed bump full of dinosaur semi-retired SJAs. Col Ham was actively engaged on the ACCA. The sum equates to far more rulings in favor of the accused …

  4. Cloudesley Shovell says:

    The perils of relying on the default settings in Microsoft Word.

    One of the default settings for the MS Word spellchecker is to ignore words in uppercase, thus setting up for public embarrassment those who are required by court rule to set large sections of very important words in uppercase.

    Minding your settings and options in MS Word is nearly as important as ensuring one has a reliable method of determining longitude before sailing past the Scillies at night.

  5. Ama Goste says:

    WYD, that’s interesting to hear about the NMCCA, as I was an appellate counsel during the days of “let’s just cut and paste the govt appellate counsel’s brief and make it NMCCA’s opinion.” I was actually thinking of all the USAF TJAG certifications recently, but it sounds like we’ll be seeing more from all the services.

  6. RY says:

    Statistically, the government has fared well over the last few years on certified issues and Art 62 appeals. Not surprising then that more are being filed. Nevertheless, at times there is good reason to accept defeat at CCA level and not risk an unfavorable precedential ruling from CAAF. Sooner or later, the increase in certified issues will backfire and put the gov’t in a worse position. Can’t be sure which case will turn the tide, but it’s a risk that sometimes is overlooked IMHO.

  7. Snuffy says:

    It cracks me up that the court felt so bound by the proposed issue that they couldn’t correct a simple mistake. Sheesh- they often rewrite them a bit — why the needless jibe? Does that mean they have to rule on whether the judge “commited error” and not “committed” error?

  8. Anonymous says:

    Good call, Snuffy. The Court doesn’t mind correcting its own typos in their initial opinions; we’ve seen such opinion errors noted on this blog only to see the Court then quickly fix their mistake.

  9. Anonymous says:

    So why does CAAF require the issues presented to be set forth in upper case letters when the QP is also indented from both margins? I thought most courts abandoned that practice back in the Stone Age. Perhaps it goes along with the CAAF preference that all documents be submitted as if the typewriter was just invented.