Audio of today’s oral argument in LRM v. Kastenberg, No. 13-5006/AF, is available at this link.

I haven’t listened to the recording yet, but I do see that it’s an hour and 18 minutes long. Since each of the participants was to receive 15 minutes to argue, there was apparently a lot of bonus time granted.

One Response to “CAAF Argument Audio: LRM v. Kastenberg, No. 13-5006/AF”

  1. nw says:

    It was a very interesting argument.  The underlying issue is whether, for purposes of MRE 412/513/514, the victim’s/patient’s/victim’s reasonable opportunity to be heard means a right to be heard through retained/appointed counsel.  Before reaching this issue, the Court must overcome the jurisdictional question, which will be equally interesting.  The posture of this case is somewhat unusual and I’d like to make an observation for commentary by others.  This observation did not occur until I was watching the oral argument.
    Background:  The Judge Advocate General of the USAF appointed four gov’t counsel at gov’t expense to brief and argue a petition for a writ of mandamus to the Air Force Court.  Once the Air Force Court stated it lacked jurisdiction, the same Judge Advocate General certified the issue to the Court of Appeals for the Armed Forces for review, which forced mandatory review of the certified issues, vice giving CAAF the discretion to grant/deny review of a writ-apeal (should LRM have sought one, which was likely). 
    Questions:  Does 10 USC 1565b mean legal assistance extends to filing petitions for extraordinary relief?  Can Article 70(e) be construed to give a Judge Advocate General authority to appoint military appellate counsel for a victim/patient/whomever to pursue extraordinary relief?  Does that fall within the definition of “in connection with the review of court-martial cases?”  Also, the Judge Advocate General appointed counsel to represent the trial judge – does Article 70(e) confer such power?  Why was this “case” certified, vice pursuing a writ appeal?
    Observation:  To me, the fact that all four parties with four varying positions were each represented by counsel appointed by the Judge Advocate General just didn’t look right.  And forcing CAAF to take the issue didn’t feel right, either.  The Solicitor General can’t force the Supremes to review a case after its gone through the Circuit Courts of Appeal, why should a Judge Advocate General have such authority?  Should limits be placed on such authority?  Not to sound glib, but could anyone file something at a CCA that isn’t even connected to a court-martial, but is reviewed (and denied) by the CCA then be subject to mandatory CAAF review should the Judge Advocate General certify the “case” to CAAF?
    Much has been made about whether or not the military appellate system is “robust” (myself included).  How does this case and how it came before CAAF factor into this much-needed debate?  I’m curious to hear what other practitioners have to say about this.