We’ve been following the case of United States v. Salyer, No. 13-0186/MC, which involves a UCI issue arising from the military judge’s recusal after government lawyers accessed his personnel record and challenged him for cause due to the age of his wife when they married, as well as the OIC of the law center calling the military judge’s supervisor and discussing the government’s upcoming motion to disqualify with him.  Here’s a link to the appellant’s brief, which was filed last week.

4 Responses to “Appellant’s brief in Salyer”

  1. Tami says:

    This is awful.  Under the Privacy Act, disclosure without consent of the data subject requires more than just a “need to know”–it has to be an “official” need to know.  There was no official need to access his personnel record.  If it was “common knowledge” that the MJ’s wife was under 18 when they married, then there is no need to “confirm” this PRIOR to voir dire by snooping in his personnel file.  You have a good faith basis for asking the questions during voir dire, and if the MJ lies, then I would say there is an official need to look in his records for confirmation.  But since the MJ told the truth, then that is enough to confirm the “rumor,” and there is no need to snoop in his file.
    Prosecutors snooping through private records and complaining to the MJ’s boss about his ruling (which by the way was logical–if you can legally have sex with a 16 year old and see her naked, then you should be able to legally have naked pictures of her)–any person who knows nothing about our judicial system would be appalled by this.  Not to mention the new MJ referring to the marriage as an “anomaly.”  Come on–he might as well have just called Lt.Col. Mori a dirty old man.  I know several couples where there’s a 9-10 year age difference.  So what.

  2. ConLaw says:

    Tami – royal stupidity from trial counsel is regrettable.  The awful part is the ratification of that conduct.

  3. Tami says:

    Gaskins is another example–it took some brave people to dissent in that one.

  4. SeaLawyer says:

    Having no dog in the fight whatsoever, I was still deeply disappointed by NMCCA’s ruling for reasons cited by both very well-written briefs.  There are two points that weren’t raised in either brief that are interesting to me, and I’m wondering whether some other factor(s), unknown to me, weighed against raising them.  
    #1:  If not in this case, certainly in others, wouldn’t NMCCA’s ratification of TC’s SRB-mining tactics essentially create a practical pre-requisite (or outright end-around) to Article 62?  Congress was VERY clear in its limitation of when the government can appeal trial judges’ unfavorable rulings.  Dissatisfaction isn’t sufficient.  By ratifying it (which was mentioned), NMCCA’s ruling is an improper de facto expansion of government remedies post-unfavorable ruling.
    #2:  Unless I missed something, the members were the same post-recusal.  To what extent did they witness the conflict between the MJ and TC.  I’m thinking especially in the context of the PE5 issue, did DC object during opening?  I would have.  If so, the members saw at least some of that play out.  Post-recusal, when TC apparently had more latitude, the members would naturally speculate whether TC had been right all along and that was the reason for the change of judges.  I think that’s true regardless of what reason, if any, was provided to them for the bench swap.  There were likely other examples that would also produce the same conclusion.  Any of which, of course, demonstrate more prejudice for the accused.