Here is a link to the Air Force Court of Criminal Appeals’ decision in United States v. Eller, Misc. No. 2013-15 (A.F. Ct. Crim. Ap.. Jun. 21, 2013), denying a government appeal of a military judge’s decision to grant a challenge for cause based on a member of a court-martial panel’s “knowledge of comments made by the President regarding sexual assault in the military, as well as her personal views on whether verbal consent was required as a prerequisite to consensual sexual interaction.”  The Court found:

The military judge acted within his wide latitude of authority in granting the defense challenge for cause, and his decision to do so did not constitute error. As we have held the military judge’s decision to grant the challenge of Col Hall for cause was not error, such decision would not—by clear implication—meet the standard required for us to issue the writ the Government seeks.

On the jurisdictional issue the AFCCA passed on whether it has the power to review government appeals outside the confines of Art. 62, UCMJ:

We need not decide whether the Government may secure, via a petition for mandamus, an interlocutory appellate review of a trial court’s order that does not fall within those matters specifically contemplated by Article 62, UCMJ, 10 U.S.C. § 862, because assuming arguendo that such review were proper, the petitioner would not prevail.

We’ll see what their sister court says in United States v. Fulton.

12 Responses to “Air Force Court First to Deny Gov’t Appeal of President Obama Created Bias Issue”

  1. soonergrunt says:

    I know I’m a dumb non-lawyer, but it seems to me that AFCCA specifically did NOT deny an appeal about whether or not the President’s words caused UCI.  To wit:
    Having reviewed the petitioner’s writ and materials provided therewith,
    as well as the real party in interest’s reply, we are convinced that the military judge’s decision was based on his determination that Col Hall had exhibited an implied bias against the accused and not whether the President’s comments concerning sexual assault amounted to unlawful command influence.
    Italics mine.  So correct me if I’m wrong (and I KNOW you all will) but it seems to me that the President’s speech, inartful as it was, either did not reach the level of UCI (in this case) or rather that AFCCA didn’t consider it relevant, (and therefore did not address it) having found Col. Hall to be biased against the accused anyway.

  2. stewie says:

    Seems weird to me, either you have J or you don’t.  If you don’t the analysis stops there and you say nothing about the merits of the case, much less come up with a holding.
    Cake having and eating simultaneously?

  3. Charlie Gittins says:

    If the Government wanted this member so bad that they were willing to file a writ to get her to sit as a member, I would say she needed to be dismissed as a member.  They must have known or had some strong indication she was theirs to have gone to such lengths to keep her, and this must be a case that was not particularly strong.  To cause a G delay in trial of days, weeks, months (?) for appellate litigation at the stage this court martial was at is a pretty big waste of resources.  These circumstances alone convince me that the challenge should have been granted.   

  4. anon says:

    Wouldn’t change the results, but shouldn’t the CCA decide on the jurisdictional question prior to addressing the underlying nature of writ? 

  5. Babu says:

    Mr. Gittins, 2 possibliities:
     
    1.  The Govt wanted this member so badly, and this case was so important, that they went ex writ to keep her.
     
    2.  The AF wanted a jurisdictional trial balloon for the question of a govt interlocutory ex writ, with the aim of having an appellate court validate the President’s statements (or find them harmless).  A denial by AFCCA on jurisdiction and/or the President’s statements could then be certified by AF JAG, and the issue could get to CAAF.

  6. Mike "No Man" Navarre says:

    SG–Correct, they did not reach UCI in this case.  But the judge did grant the challenge based in part on the PResident’s statements, see footnote.

  7. stewie says:

    I believe it was more likely a broader aim than just this individual juror so I agree somewhat with 2.  I also agree with the AFCCA in their decision in this case.  The whole point of voir dire is to undercover these things. 

  8. Charlie Gittins says:

    Babu:  I guess I was thinking much less conspiratorily.  In my experience, which I’ll admit is growing dated these days, local cases rarely had the attention of the office of the TJAG.  That the central JAG offices are or may be closely watching individual court-martials would be somewhat news to me, except in high profile cases like Tailhook prosecutions, SMA McKinney, the Air Force SAPR office LtCol, the Cavalese Italy EA-6B/cable car accident and like cases of major national media interest.  Doesn’t usually happen in an E-2 case unless the E-2 is like a Manning and did espionage or murder.    

  9. Bill Cassara says:

    I find it odd that a court would say “we don’t have to decide whether we have jurisdiction, because the case has no merit.”  I would have expected “We don’t have to decide the merits of the case, because we have no jurisdiction.”  

  10. Babu says:

    I am guessing AFCCA saw the ex writ as an attempt by the Government to force the jurisdiction and UCI issue, and didn’t want to play ball.  So that is why they went to the merits rather than jurisdiction.
     
    Regarding TJAG interest in individual courts-martial, I have to believe that at this point any adverse ruling or decision in a sexual assault case is a CCIR.  

  11. Atticus says:

    It’s the difference between an Art 62 appeal and a writ.  There are two very narrow grounds in law under which the G can file a 62.  Anyone can file a writ at any time for any reason; a writ is asking a higher court to order a lower court to do something.  It’s not really a question of jurisdiction.  In the NMCCA’s case they granted the writ with respect to stopping the Hawaii cases.  Here it’s clearly different and its a different issue.  I have never heard of the G or the D for that matter filing a  writ or an appeal to reverse a challenge. 

  12. Mike "No Man" Navarre says:

    Atticus, I don’t think the NMCCA granted the writ to stay the case.  NMCCA stayed the case so they have an opportunity to determine if they can/should grant the writ.  And because writs in the mil-jus system must be in aid of statutory jurisdiction, which in the case of the gov’t is confined by Art. 62, it is an expansionist argument to say that this writ is in aid of jurisdiction that Congress hasn’t granted to–in fact, has specifically withheld from–the military appellate courts.