The Judge Advocate General of the Air Force today certified for CAAF’s review two issues arising from the Air Force Court’s published opinion in United States v. Vazquez, No. ACM 37562:

I.

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT APPELLEE WAS NOT AFFORDED A FUNDAMENTALLY FAIR TRIAL, AS GUARANTEED BY MILITARY DUE PROCESS AND THE UCMJ, WHEN TWO REPLACEMENT COURT MEMBERS DETAILED AFTER TRIAL ON THE MERITS HAD BEGUN WERE PRESENTED RECORDED EVIDENCE PREVIOUSLY INTRODUCED BEFORE THE MEMBERS OF THE COURT IN COMPLIANCE WITH ARTICLE 29, UCMJ, AND R.C.M. 805(d)(1).

II.

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FAILING TO FIND WAIVER OR BY FAILING TO CONDUCT A PLAIN ERROR ANALYSIS; INSTEAD, THE COURT INCONGRUOUSLY FOUND THE ALLEGED VIOLATION OF APPELLEE’S RIGHT TO MILITARY DUE PROCESS WAS PER SE PREJUDICIAL DESPITE DECLARING THAT THE ERROR WAS NOT STRUCTURAL.

United States v. Vazquez, __ M.J. __, No. 12-5002/AF (C.A.A.F. May 29, 2012).

AFCCA’s opinion in the case generated significant commentary here.

6 Responses to “The Judge Advocate General of the Air Force certifies two issues in Vazquez”

  1. anonymous air force senior defense counsel with the initials NM says:

    I know there was some business with rule changes regarding deadlines for TJAG to certify issues to CAAF.  This one seems to bust all the deadlines.  (more than 60 days after AFCCA decision).  Was there a motion for reconsideration filed or some other reason that the deadline is extended?

  2. Dwight Sullivan says:

    NM, JAJG moved to reconsider en banc.  (I can’t remember whether the recon request also asked for in-panel recon).  AFCCA denied the motion to reconsider en banc, but did reconsider in panel.  AFCCA made a minor adjustment to the remedy portion of the opinion and added a footnote to make clear that it wasn’t finding structural error in the case.  TJAG then certified the case to CAAF 30 days after AFCCA issued its decision upon reconsideration.

  3. Christopher Mathews says:

    Other than the addition of footnote 15, what changes were made?

  4. Dwight Sullivan says:

    JMTGst, the second opinion also deleted the following paragraph, which was the penultimate paragraph of the original opinion:

    As applied in this case, R.C.M. 805(d)(1) resulted in a structural error in the trial mechanism such that the “criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.”  Arizona v. Fulminante, 499 U.S. 279, 301 (1991) (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)).  For the reasons discussed, we find the appellant was not afforded the due process protections guaranteed by Congress.

    The original opinion is available here: http://www.caaflog.com/wp-content/uploads/Vazquez-37563.pub_.pdf

  5. Christopher Mathews says:

    Thanks, Col S.  

    That language is a little hard to reconcile with footnote 15’s claim that the court “inadvertently left the impression” its decision was based on Constitutional structural error analysis as discuseed in Fulminante — it seems like they were pretty explicit about it.  Still, if that wasn’t what they meant, I’m glad they cleared it up. 

    I’m disappointed that the CCA didn’t choose to address the question you and I wondered over — whether the dismissal of the charge was intended to be with prejudice.  I suppose that will eventually be resolved if CAAF lets the decision stand.

  6. NW says:

    NM, the gov’t did ask for en banc and in panel recon.  Former denied, latter granted w/ the minor edits DS mentioned above.  Col M., my two cents: they didn’t intend to dismiss w/ prejudice, but there’s certainly a good DJ argument to make if the outcome is a new trial.  On a different note, Vazquez remained in confinement the entire time until certification.  AFCCA denied two habeas petitions in the interim.  The Court dismissed the charges, but didn’t see fit to order Vazquez’s release like NMCCA did the day after oral argument in US v. Lucas.  Go figure.