Every Sunday at 1 p.m. we publish This Week in Military Justice, a summary of upcoming military justice events. While putting together today’s post I saw that tomorrow the Air Force CCA, sitting en banc, will hear oral argument in an interlocutory appeal:
United States v. Wright, No. 2014-10
Issue: Whether the military judge abused his discretion by abating the proceedings after the government complied with his discovery compliance order, proved beyond a reasonable doubt that no unlawful command influence or appearance thereof existed, and properly asserted the attorney-client and work product privileges.
To the best of my knowledge (and someone please correct me if I’m wrong on this) this is a sexual assault case that was dismissed last year after Air Force Lieutenant General Craig Franklin determined that an Article 32 pretrial investigation did not reveal enough evidence to support trial by court-martial. (update: a few readers have confirmed that this is the same case). For those who don’t immediately recognize the name, Franklin was the convening authority in the Wilkerson case, our #5 Military Justice Story of 2013.
It seems we’ve covered the Wright case sporadically during the past year. In this post from February, I noted news reports about Franklin’s removal as convening authority and the convening of a second Article 32 investigation in the case. Then, in this post from March, I noted a news report that the case was referred for trial by the new convening authority. Finally, in this post from August, Mike noted the action that appears to be the subject of the Government appeal to the CCA:
The Wright court-martial drags on as Judge Kastenberg threatens to dismiss the case if he doesn’t see emails from the AF TJAG and SecAirForce. Stars and Stripes report here. The case against Airman 1st Class Brandon T. Wright went to an Art. 32 and resulted in a recommendation of dismissal. The CA was, unfortunately, Lt. Gen. Craig Franklin. After he chose not to refer the case, senior AF officials became involved. This resulted in a new Art. 32 hearing (now at JB Andrews) and a new CA, Maj. Gen. Sharon K. G. Dunbar, deciding to refer the case. Defense counsel want emails between senior officials to determine if there was UCI. Judge Kastenberg has agreed, but the Air Force is refusing to produce them, even for an in camera review by the judge. Prior coverage here.
Unfortunately, that’s about all the detail I can find about the case that will be before the full AFCCA tomorrow (and my conclusion that it’s the same case is really only an educated guess). Considering the visibility of this case, the politically charged environment for sexual assault prosecutions at courts-martial, and the overriding need to avoid even the appearance of unlawful command influence, I’m saddened that we don’t have more information about this case.
However, I will note that the Government’s apparent refusal to produce correspondence for an in camera review reminds me of a recent case, also from the Air Force, where a similar attitude led to a dismissal with prejudice. In a published opinion issued last month in United States v. Bowser, __ M.J. __, Misc. Dkt. No. 2014-08 (A.F. Ct. Crim. App. Oct 3, 2014) (discussed here), the Air Force CCA affirmed the judge’s ruling that dismissed with prejudice charges of rape, forcible sodomy, and assault, after the trial counsel refused to obey an order for an in camera review of the prosecution team’s witness interview notes.
Whether the Air Force seeks to use Wright to re-litigate the issues it lost in Bowser remains to be seen.