On Tuesday CAAF granted review of the published decision of the Army CCA in United States v. Phillips, No. 20120585, 73 M.J. 572 (A.Ct.Crim.App. Jan. 31, 2014) (en banc op. on recon.) (link to slip op.):

No. 14-0199/AR. U.S. v. Bryce M. PHILLIPS. CCA 20120585. Review granted on the following issue:

Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction described under Article 134, UCMJ, and the record does not reflect appellant’s understanding that the order imposing restriction was issued with the full authority of his commander’s office to lift the duty in the parlance of this court’s earlier opinion, “above the common ruck.”

I discussed the CCA’s en banc opinion in Phillips in a post in February titled “It was fun while it lasted… the Army CCA puts an end to the comeback of the ultimate offense doctrine.” I concluded that post with the following observation:

Senior Judge Lind (with the majority) and Judge Krauss (with Senior Judge Yob) are clearly in stark ideological opposition on this issue. Senior Judge Lind sees it as a choice left to the prosecutor’s discretion, while Judge Krauss sees that discretion subject to significant limitations in law. Both are compelling arguments and any wonk has to get excited at the possibility that CAAF will weigh in – CAAF hasn’t considered an application of the doctrine in nearly 20 years. See United States v. Morrison, 41 M.J. 482, 484 (C.A.A.F. 1995) (“Under the facts of this case, the punishment is not limited by the ‘ultimate offense’ doctrine.”).

Dreams do come true.

CAAF also granted review of an issue relating to disqualification of a panel member in an Army case:

No. 14-0289/AR. U.S. v. Jordan M. PETERS. CCA 20110057. Review granted on the following issue:

Whether the military judge erred in denying the implied bias challenge against LTC JC, in light of LTC JC’s professional relationship with trial counsel, the special court-martial convening authority, and the investigating officer.

The Army CCA rejected the error in an unpublished opinion issued in October and available here. The court deferred to the military judge’s decision, noting that “the military judge made extensive findings of fact, applied the liberal grant mandate, and employed the proper test for determining whether LTC JC should be challenged for cause based on implied bias.” Slip op. at 4.

One Response to “The ultimate offense doctrine returns to CAAF”

  1. Christian Deichert says:

    I just kicked back a charge sheet the other day that had breaking restriction charged as a violation of orders.  Soon I’ll know if I’m on the cutting edge of military jurisprudence, or just being a fuddy-duddy COJ.