We’ve previously taken a couple of looks at NMCCA’s unpublished Porter decision (here and here). United States v. Porter, No. NMCCA 201100188 (N-M. Ct. Crim. App. June 28, 2012). Today the Judge Advocate General of the Navy certified two issues in the case to CAAF:

I

THE ENTRIES ON PAGES 54 AND 154 OF PROSECUTION EXHIBIT 15 THAT NMCCA FOUND TO BE TESTIMONIAL HEARSAY WERE NEITHER MADE WITH THE PRIMARY PURPOSE OF PROVING PAST EVENTS RELEVANT TO LATER CRIMINAL PROSECUTIONS NOR FORMALIZED.  DID THE LOWER COURT ERR BY FINDING THAT THESE PAGES WERE TESTIMONIAL STATEMENTS?

II

DID THE LOWER COURT ERR BY FINDING THAT THESE ENTRIES DEEMED TESTIMONIAL HEARSAY CONTRIBUTED TO APPELLANT’S CONVICTION WHERE THESE ENTRIES ONLY PROVIDED TECHNICAL DATA AND THE GOVERNMENT’S CASE WAS OTHERWISE STRONG?

5 Responses to “Porter certified to CAAF”

  1. Zachary Spilman says:

    This is a reality check:

    While the appellant was receiving treatment, his commanding officer authorized a blood and urine sample to search for evidence of drug use. Record at 232-33; Prosecution Exhibit 8 at 2. The blood and urine samples were turned over to the Criminal Investigative Division, which sent the samples to the AFIP lab for testing. Record at 237; Prosecution Exhibit 15 at 6. AFIP performed a battery of tests and concluded that the samples were positive for illegal controlled substances, specifically marijuana and cocaine.

    The AFIP prepared a 169-page report consisting of various documents relating to the testing of the appellant’s blood and urine. PE 15. While most of the report consists of computer-generated data, the report also contains several summaries of the test results with signatures by an analyst and a reviewer. Specifically, pages 54 and 154 of PE 15 summarize the results of the confirmation tests and note the following information: sample source, amount tested, concentration of substance tested, diluents amount, dilution factor, and final concentration. Both pages also contain a handwritten positive symbol, indicating the presence of metabolites for marijuana and cocaine. Both pages have plus signs indicating a positive result, and the word “present” appears on page 154. Both pages contain signatures by analysts and a reviewer.

    United States v. Porter, No. NMCCA 201100188, slip op. at 3 (N-M. Ct. Crim. App. June 28, 2012) (emphasis added).

    Not “…MADE WITH THE PRIMARY PURPOSE OF PROVING PAST EVENTS RELEVANT TO LATER CRIMINAL PROSECUTIONS…”?!? Something is very wrong, either with this case or with my impression of it…

  2. Anonymous Air Force Senior Defense Counsel with initials NM says:

    Phrased differently… Navy TJAG says these pages aren’t testimonial.  Did the NMCCA error by saying they are?

  3. Bill C says:

    One of these days I am going to open CAAFLOG and see that a TJAG has certified a case to CAAF in a manner that would benefit the accused, not the government.   But then again, I also believe in unicorns.

  4. Some DC says:

    I know Code 45 has requested several cases to be certified on behalf of the Appellant in the past couple of years and TJAG has denied each one.

  5. John Harwood says:

    Bill, I’m aware of one case where USAF TJAG certified a case to AFCCA (the punishment didn’t rise to the level of being reviewable), and the review was to determine whether a constitutional basis existed to set aside the conviction.  It’s a sodomy case: the guy was convicted of engaging in consensual homosexual acts under Art 133.  Punishment was a dismissal and a reprimand.  To the CA’s credit, he only approved the reprimand.  Then, TJAG certified the case to AFCCA to see if US v Marcum required the case to be set aside.

     http://afcca.law.af.mil/content/afcca_opinions/cp/harvey-36641.pub.pdf