A number of notable entries appear on CAAF’s daily journal for last Friday:
The court granted and remanded an Army case (that it appears the CCA summarily affirmed) for further development of the record regarding a claim of ineffective assistance of counsel:
No. 14-0137/AR. U.S. v. Daniella M. HOWARD. CCA 20120844. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted on the following issue:
WHETHER APPELLANT WAS DENIED HER SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO CONDUCT A PROPER INVESTIGATION AND PRESENT VITAL EVIDENCE TO THE MILITARY JUDGE REGARDING THE DEFENSE OF DURESS AS A RESULT OF A SEXUAL ASSAULT BY A NONCOMMISSIONED OFFICER.
The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry on the granted issue. The Court of Criminal Appeals will obtain affidavits from the trial defense counsel (military and civilian) that respond to Appellant’s allegation of ineffective assistance of counsel. Under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2012), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavits and any other relevant matters. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). If the court determines that a fact-finding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.
No. 14-5003/AF. U.S., Appellant v. Jimmy L. WILSON, Appellee. CCA 37897. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:
WHETHER ARTICLE 12, UCMJ, APPLIES TO THE CIRCUMSTANCE WHERE AN ACCUSED AND/OR CONVICTED MEMBER OF THE ARMED FORCES IS CONFINED IN IMMEDIATE ASSOCIATION WITH FOREIGN NATIONALS IN A STATE OR FEDERAL FACILITY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.
Appellant will file a brief under Rule 22(b) in support of said certificate on or before March 31, 2014.
The court denied review in Trank. Remember Trank? It’s the Army case with the Article 62 appeal that I discussed last November in a post titled: In the debate over whether an alleged victim should testify at an Article 32 hearing, the Army CCA has impeccable timing. Notably, CAAF granted a stay of proceedings just a week before it denied review (discussed in this post). It’s also worth mentioning that Rule 6 of CAAF’s rules gives the Chief Judge (or a judge performing his duties) the authority to grant a stay.
CAAF also denied review of the rehearing in McMurrin, ending the long saga of Fireman McMurrin who, in 2008, went on a cocaine and heroin binge with a fellow sailor who died at the end of the night after McMurrin left him in the bushes to “sleep it off.” See United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011) (McMurrin II) (link to slip op.). I last discussed the case in this post, where I predicted (wrongly) that CAAF would grant review.
Finally, in this post I noted the NMCCA’s decision the set aside the findings and authorized a rehearing in United States v. Dougherty, No. 201300060 (N-M.Ct-Crim.App. Dec. 31, 2013) (link to slip op.). Considering that result, I was surprised to see this:
No. 14-0436/MC. U.S. v. Daniel L. DOUGHERTY. CCA 201300060. Appellant’s motion to extend time to file the supplement to the petition for grant of review granted to March 19, 2014.