CAAF’s Daily Journal for February 13 reflects the following:
No. 12-5001/AF. U.S., Appellant v. Robert C. BRISSETTE, Appellee. CCA 37537. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, and a supporting brief were filed under Rule 22 on the following issues:
I. Whether the pre-amended charge and specification for indecent acts with a child in violation of Article 134, UCMJ, necessarily implied the terminal element and, therefore, the amendment to the specification constituted a minor change.
II. Whether appellee properly challenged the legal sufficiency of the charge and specification for indecent acts with a child in violation of Article 134, UCMJ, when he did not move to dismiss the specification for failing to state an offense at trial and preserve a narrow interpretation of the text of the specification pursuant to United States v. Fosler, 70 M.J. 225 (CAAF, 2011).
Appellee will file an answer under Rule 22(b)(1) on or before February 23, 2012.
Col Sullivan covered the background of Brissette in this post on December 19, 2011:
Brissette arose from an Article 134 indecent acts with a minor spec that didn’t allege any of Article 134′s three clauses. After arraignment — and after Fosler was argued at CAAF but before it was decided — the government moved to amend the spec to add that the conduct was of a nature to bring discredit on the armed forces. The military judge granted the motion over defense objection. The accused was convicted of the spec with certain exceptions. CAAF announced its Fosler decision after trial but before the record had been authenticated. The defense moved that the military judge reconsider his earlier ruling. He did and concluded that in light of Fosler, the addition of the “of a nature to bring discredit on the armed forces” language was a major change made post-arraignment over the accused’s objection. The military judge dismissed the spec without prejudice. The government appealed.
Today, AFCCA affirmed the military judge’s ruling.
The next day, on December 20, the AFCCA docketed a a Petition for Extraordinary Relief in the Nature of a Writ of Habeas Corpus. Eight days later, on December 28, CAAF docketed a similar petition and ordered that the United States show cause why the requested relief should not be granted. Then, on January 3, 2012, CAAF issued the following order:
No. 12-8009/AF. In Re Robert C. BRISSETTE. CCA 2011-07. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus, and the answer of the United States to this Court’s order to show cause, it is ordered that said petition is hereby granted, and the petitioner be released from confinement immediately.
Update: There is more background and analysis in the comments section of this post.