The Judge Advocate General of the Air Force has certified three issues to CAAF following AFCCA’s holding that it didn’t have jurisdiction to provide extraordinary relief to the complainant in a sexual assault case who sought to reverse Judge Kastenberg’s ruling that she had no right to have her “special victims counsel” address the court during an MRE 412 or MRE 513 hearing:

I.  Whether the Air Force Court of Criminal Appeals erred by holding that it lacked jurisdiction to hear A1C LRM’s petitino for a writ of mandamus

II.  Whether the military judge erred by denying A1C LRM the opportunity to be heard through counsel thereby denying her due process under the Military Rules of Evidence, the Crime Victims’ Rights Act and the United States Constitution

III.  Whether this Honorable Court should issue a writ of mandamus.

AFCCA’s unpublished decision in the case is available hereLRM v. Kastenberg, Misc. Dkt. No. 2013-05 (A.F. Ct. Crim. App. Apr. 2, 2013). We previously discussed the case here.

7 Responses to “Judge Advocate General of the Air Force certifies SVC case to CAAF”

  1. Dew_Process says:

    IV.  Should this Court impose sanctions for a frivolous appeal?
    Seriously – if Congress had to enact Art. 62 so that the United Stateshas a right to an interlocutory appeal, where they at least as a party had “standing,” absent some Congressional action giving a non-party, witness standing, there simply cannot be jurisdiction.

  2. Tami says:

    There’s always jurisdiction to determine if the lower court had jurisdiction.  I suspect CAAF will answer the first issue with a resounding “no,” thus negating the need to address the other 2 issues.  It would be tough to answer any other way, especially given the ruling on the Manning case with the media.

  3. Christian Deichert says:

    You’re forgetting, of course, that CCR involved an outside agency essentially trying to litigate a FOIA request in someone else’s court-martial, and the outcome of that FOIA request should not have any effect on the outcome of PFC Manning’s case.  Whereas the introduction (or not) of evidence under MRE 412 or 513 can actually affect the outcome of a sexual assault trial. 
    Also keep in mind that both MRE 412 and MRE 513 specifically mention a victim’s opportunity to be heard, a phrase you may recall from one or two Due Process cases.  (As opposed to Dew_Proces cases, which are apparently not the same thing.)
    Full disclosure, I work alongside the “SVC appellate division.”  For the next week, anyway.

  4. RY says:

    CCR is more than a FOIA case.  It’s a well recognized public right to access issue.  I bet this is a much quicker decision than CCR and would not be surprised to see unanimous affirmance in short order.  I appreciate the idea of the SVC program but it is trying to assert rights that don’t exist. 

  5. RetiredJAG says:

    Here is what makes this case odd.  Before the Air Force Court the SVC counsel argued that the only possible effect on a court-martial was that the military judge would spend more time sifting through the arguments of three attorneys.  But, because judges are presumed to follow the law there could be no impact on the accused or the court-martial.  Now, before the CAAF – for the first time I might add – the SVC are arguing that there could be a substatial effect on the findings or sentence.  It seems like the SVC are raising an argument for the first time on appeal, and if so, wasnt the previous appeal frivolous – and doesnt this mean TJAG certified a frivolous appeal?
    Or in the alternative, if not frivolous, then can the SVC raise a new argument for the first time before CAAF withiout the lower court having fully considered it?

  6. Phil Cave says:

    Wait until you read the amicus pleading of the AFCDC when Zach does his very nice preargument briefing.
    I won’t steal Zach’s thunder too much.  Any allegation that there has been no effect on cases – for the worst – is seriously guano crazy, to adopt that quaint legal term first used here in Lakin.  There, what Dwight “My Liege” Sullivan calls a teaser.

  7. Dew_Process says:

    RetJAG – CAAF cannot consider arguments not “preserved” below – but they frequently honor that rule in the breach.  I’ll add to Phil’s tease as I’m privy to the amicus brief as well – it is written in the classic style of the legendary Brandeis brief, and the 0-6 JAG that authored it will no doubt soon be assigned to the newly created Air Force Submarine Command in Antarctica to await the commissioning of the Air Force’s first one person submarine.