CAAF today issued this order granting Technical Sergeant Brissette’s habeas petition and ordering that he be released from confinement immediately.

5 Responses to “CAAF grants habeas relief”

  1. RY says:

    What was the basis for the habeas petition?  All the journal shows is that AFCCA was petitioned, CAAF was petitioned, CAAF issued a show cause order, and CAAF ordered release all while JAJG still appears to be within their window to seek TJAG certification.  I am curious about the underlying issue/arguments.

  2. Dwight Sullivan says:

    Romeo Yankee, you might want to pop yourself a big bowl of Orville Redenbacher’s before you read my reply to your query, because it’s going to take a while to plow through it.

    Technical Sergeant Brissette was charged with committing indecent acts with a minor at a time when that was still an Article 134 offense.  The spec didn’t allege an Article 134 terminal element.

    After Brissette was arraigned, CAAF heard oral argument in Fosler.  Apparently in light of how that argument went, JAJG instructed TCs to amend Article 134 specs that didn’t include a terminal element to add at least one.  The TCs in Brissette’s case then moved to amend the indecent acts spec post-arraignment.  The defense objected.  The military judge granted the motion.

    Brissette went to trial and was convicted, by exceptions, of only a portion of the indecent acts spec and nothing else.  He received a sentence that included confinement for 13 months.

    After CAAF announced its Fosler decision, Brissette’s defense counsel asked the military judge (who hadn’t yet authenticated the record) to reconsider his ruling permitting amendment of the spec post-arraignment over the defense’s objection.  The military judge agreed to do so, reversed his previous ruling, and ordered that the findings and sentence be set aside and the charge dismissed without prejudice.  The government then filed a notice of appeal.  When the DC asked that Brissette be released from confinement because he was no longer convicted of any offense, the military judge said that the filing of the notice of appeal automatically stayed his ruling, thus requiring that Brissette remain confined.  The convening authority then denied a defense request to either release Brissette or suspend confinement pending outcome of the Article 62 appeal.

    AFCCA set oral argument for 6 December — almost three months after the military judge ruled that Brissette hadn’t been properly convicted of any offense.  Brissette filed a habeas petition at CAAF, arguing that he was being unlawfully confined and that the Air Force Court wasn’t meeting the congressional requirement to handle Article 62 appeals expeditiously.  CAAF denied the habeas petition.  Brissette v. Norman, __ M.J. __, No. 12-8007/AF (C.A.A.F. Dec. 5, 2011).  

    On 19 December, AFCCA issued a 2-1 opinion ruling for Brissette.  In my more than 4 years at Air Force Appellate Defense, I believe that it has universally been the case that JAJG has taken the position that as soon as the CCA rules on an Article 62 appeal, the automatic stay is dissolved and trial resumes immeidately.  Yet, in this case, the government took the position that AFCCA’s ruling had no effect until the 30-day reconsideration period ran.  Brissette’s defense counsel asked the convening authority to release him.  The convening authority refused, citing the pending Article 62 appeal (that had already been denied).  Brissette’s defense counsel then filed an Article 138 complaint that was denied.  Brissette’s counsel then filed a habeas petition with the AIr Force Court on 20 December.  The Air Force Court docketed the habeas petition but never did anything further.  Because the Air Force Court was going to be closed for the next four days, on the evening of Thursday, 22 December, Brissette’s counsel filed a habeas petition with CAAF.  The habeas petition argued that the Air Force Court’s ruling dissolved the automatic stay and that Brissette was now entitled to have the trial judge’s ruling be given legal effect.  CAAF docketed the habeas petition on Tuesday, 26 December.  On Wednesday, 27 December, CAAF ordered JAJG to show cause by 1700 the next day why it shouldn’t issue a writ of habeas corpus.  JAJG filed a brief the following day.  That brief took a position opposite that which JAJG had taken in every other Article 62 case of which I’m aware concerning when the AFCCA decision becomes effective.  That brief also argued, incorrectly, that the defense was attempting to thwart JAJG’s ability to seek en banc reconsideration or have the case certified to CAAF.  Regardless of whether Brissette was released from confinement, JAJG could take those steps; the issue was whether the government could continue to confine Brissette while it made any such efforts.  Brissette’s counsel filed a reply that same evening.  Then, yesterday, CAAF issued its order directing that Brissette be released immediately.

  3. RY says:

    Thanks for the clarification.  I do remember JAJG “strenuously” contesting time after time that a MJ had no authority to continue a case JAJG won on Art 62 appeal and that trial must proceed immediately.  As I recall, that argument was never agreed to by any judge.  On the other hand, I thought the 30-day rule permitted them to hold the status quo while they sought cert.  Your recap clarifies the competing perspectives and I’m now that much smarter, but still miles away from you, on military justice/appellate matters.  Thanks again!

  4. Dwight Sullivan says:

    Romeo Yankee, you are correct that no court that has addressed it has ever accepted JAJG’s argument that the military judge has no power to grant a continuance after the initial CCA opinion while an accused seeks further review.  (Nor should any court ever accept that argument, which misconstrues the plain language of R.C.M. 908(c)(3), ignores the existence of UCMJ Article 40, and is refuted from the grave by Colonel Winthrop.)  But while a military judge has the power to grant a continuance, military judges have routinely taken the position that absent such a continuance (or a stay from a higher court), trial can resume immediately upon the CCA’s ruling.  Hathorne, in which CAAF granted review yesterday, is one such example.  He was tried, over his objection, 29 days after the CCA ruling.  Even in those cases where the trial judge granted a continuance following the initial CCA ruling — like, for instance, Bradford and Borgman — the military judges thought it was necessary to grant a continuance; they didn’t believe that the automatic stay was still in effect.

  5. Dwight Sullivan says:

    Romeo Yankee, one addition — you refer to the 30-day rule preserving the status quo.  I assume that’s a reference to United States v. Miller.  Miller said that the CCA opinion is inchoate but the accused it entitled to the benefit of the CCA opinion 30 days from issuance.  But that was in the context of an Article 66 appeal where the CCA’s ruling changed the outcome below.  In Brissette, the military judge’s ruling was in Brissette’s favor.  Thus, the issue in Brissette isn’t whether AFCCA’s ruling should be given effect — it’s whether the military judge’s ruling should be given legal effect.  The military judge’s ruling would be legally effective but for the R.C.M. 908(b)(4) automatic stay.  Brissette’s appellate counsel (Capt White) took the position that the CCA ruling dissolved that automatic stay and that Brissette was, therefore, entitled to release in accordance with the military judge’s ruling.  The case for giving immediate effect to the ruling was thus greater in the Brissette case — where legal effect wasn’t being given to the CCA ruling — than in an Article 62 appeal case in which the government prevails, since there resuming with the trial in accordance with the CCA’s ruling is giving immediate legal effect to that ruling.  Yet, while in the latter case the government has always given instant effect to the CCA’s ruling, in this case it refused to do so until CAAF ordered it to.