USACIL is the United States Army Criminal Investigation Laboratory. It is part of United States Army Criminal Investigation Command (USACIDC) that reports directly to the Provost Marshal General, Headquarters, Department of the Army. See General Order 22, Oct. 16, 2006

United States v. Katso, __ M.J. __, No. 38005 (A.F. Ct. Crim. App. Apr. 11, 2014), cert. for rev. filed, __ M.J. __ (C.A.A.F. Jun. 9, 2014) (CAAFlog case page), is a significant Confrontation Clause decision by the Air Force Court of Criminal Appeals. In Katso a three-judge panel of the court led by Chief Judge Roan found that a surrogate DNA expert who testified for the Prosecution improperly repeated testimonial hearsay, depriving the appellee of his constitutional right to confront the examiner who actually conducted the DNA analysis (but was unexpectedly unavailable for trial due to a family emergency). The CCA then split 2-1 to find that error prejudicial, reversing the convictions for aggravated sexual assault, burglary, and unlawful entry, for which the appellee was sentenced to confinement for ten years, total forfeitures, and a dishonorable discharge. I analyzed the CCA’s opinion in this post.

The Judge Advocate General of the Air Force certified Katso to CAAF with the following issue:

Whether the Air Force Court Of Criminal Appeals erred when it found Appellee’s Sixth Amendment right to confrontation was violated when the military judge permitted, over Defense objection, the testimony of the Government’s DNA expert, and that the error was not harmless.

The DNA analysis was conducted by USACIL, and CAAF’s daily journal for yesterday reveals that the organization wants to be heard in the case:


No. 14-5008/AF. United States, Appellant v. Joshua KATSO, Appellee. CCA 38005. On consideration of the motions filed by the Defense Forensic Center, United States Army Criminal Investigation Laboratory, to file an amicus curiae brief in support of Appellant and to extend time to file a proposed amicus curiae brief in support of Appellant, it is ordered that said motions are hereby granted.  The brief of amicus curiae will be filed on or before September 10, 2014.

I think it very interesting that CAAF granted a motion to file an amicus brief from an Army command separate from the Army’s Appellate Government Division.

3 Responses to “CAAF grants USACIL additional time to file an amicus brief in Katso”

  1. Dew_Process says:

    While I guess in theory CAAF can hear anyone out, in light of the fact that the Army TJAG is by statute the Army’s top lawyer [see, 10 USC Sec. 3037(c)(1): “is the legal adviser of the Secretary of the Army and of all officers and agencies of the Department of the Army;”], it’s hard to conceptualize just how USACIL has independent “standing” here.  If there position is the same as Gov’t Appellate, it’s redundant; if it’s not, it would seem that the Army TJAG – like the Solicitor General – needs to be the “voice” speaking for the government.
    It’s also problematic in another sense – if USACIL is [cough-cough] maintaining the position that it is a “neutral” forensic science laboratory as opposed to an arm of the prosecution, they should stick to the science and leave the appellate advocacy where it belongs, i.e., in the hands of Appellate Gov’t.  I posit this because what if Katso’s lawyers take issue factually or scientifically with whatever it might be forthcoming from USACIL, do they now have the right to go “hey, that’s BS and we now want a Defense ‘expert’ forensic lab to evaluate their Amicus Brief?”  The system is already loaded in favor of the government forensically and stacked against an individual accused unless s/he’s got competent and aggressive counsel.
    It just seems to be a “slippery-slope” that seems contraindicated by common sense, if not the TJAG statute.

  2. rob klant says:

    Interesting, I agree.  If even only as a matter of form, it appears as though the division does not truly speak for the “government.”  
    Not, I believe, that CAAF has ever suffered any such illusion, but I don’t see what’s gained by emphasizing the fact.  
    Maybe it’s just practical considerations driving the choice, e.g. a means to extend page limitations.

  3. Phil Cave says:

    What could an attorney for USACIL argue at this point that is not already in the Gov. brief or the record of trial.  And anything else would be an attempt to either testify or add “evidence” or something similar to the record.  If it wasn’t offered at trial, then it’s not evidence for consideration now, so be careful of precisely what it is USACIL seeks to “offer.”  It is too late to supplement the record.
    Perhaps Katso can file a motion objecting?
    I agree with DP, and I have raised this issue in connection with CAAF inviting the UNITED STATES to have four bites at the apple, the directly affected Service, and then the other Appellate Government (read United States) shops.  If CAAF wants a coordinated response from the United States then extend the page limit say by 10 pages, and require a signature from a member of each Appellate Government shop.  That IMHO is a better perception, than the UNITED STATES getting four bites at the apple.