There are some dangers to deciding the same legal issue on the same day in different cases. For example, the court might inadvertently create an infinite loop of citation. Consider:

Where there is no waiver, and in the absence of an objection, we test the instructions provided by the military judge for plain error based on the law at the time of appeal. See Harcrow, 66 M.J. at 159 (“where the law at the time of trial was settled and clearly contrary to the law at the time of appeal — it is enough that an error be plain at the time of appellate consideration”) (citations omitted); United States v. McMurrin, __ M.J. __ (8) (C.A.A.F. 2011)

United States v. Girouard, 70 M.J. 5, 11, slip op. at 16 (C.A.A.F. 2011) (link to slip op.).

And:

Additionally, we find that Appellee’s failure to object forfeited, rather than waived, any error. Girouard, __ M.J. at __ (16-17).

United States v. McMurrin, 70 M.J. 15, 18, slip op. at 8 (C.A.A.F. 2011) (link to slip op.).

In other words, someday appellate counsel will have the opportunity to write:

“Failure to object forfeited, rather than waived, any error.” United States v. McMurrin, 70 M.J. 15, 18 (C.A.A.F. 2011) (citing United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011) (citing McMurrin, 70 M.J. at 18)).

7 Responses to “A Mobius Strip of Citation”

  1. H Lime says:

    And don’t even mention the lineage/reason for that “constructive amendment” footnote. J. Ryan is the footnote queen.

  2. Christopher Mathews says:

    CCA critics: Do keep this little gem the next time you feel inclined to accuse the service courts of engaging in circular logic.

    They’re merely following well-established precedent.

  3. soonergrunt says:

    That just doesn’t seem right somehow. Does that seem right to you?
    No. That just doesn’t seem right somehow. Does that seem right to you?
    No. That just doesn’t seem right somehow. Does that seem right to you?
    No. That just doesn’t seem right somehow. Does that seem right to you?

  4. stewie says:

    It’s a quotation within a quotation…

    CAAFception.

  5. Christopher Mathews says:

    It’s a quotation within a quotation…CAAFception.

    Can’t top that.

  6. Dew_Process says:

    So, a new ground for IAC??

  7. Andrew Flor says:

    I’m just glad to see the term “Moebius” making it into common military justice parlance. See my article in the recent Army Lawyer. :)