The Article 62 appeal in the Air Force case of United States v. Bowser was our #10 military justice story of 2014. The case might just make our list two years in a row, as CAAF’s daily journal for Monday shows the following:

No. 15-0289/AF. U.S. v. Roy A. Bowser. CCA 2014-08. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, and supporting brief were filed under Rule 22 on this date on the following issues:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO GRANT TRIAL COUNSEL A BRIEF CONTINUANCE TO CONSULT WITH THEIR SUPERVISORY ATTORNEYS, FINDING PROSECUTORIAL MISCONDUCT AND BAD FAITH FOR THE FIRST TIME SEVENTEEN DAYS AFTER THE NOTICE OF APPEAL WAS FILED, AND DISMISSING ALL CHARGES AND SPECIFICATIONS WITH PREJUDICE.

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN, CONTRARY TO ARTICLE 62(B), UCMJ, IT REQUESTED FACTS OUTSIDE OF THE RECORD SOLICITED IN ORAL ARGUMENT TO “PARTIALLY INFORM [ITS] DECISION AS TO WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION.”

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT CONCLUDED THAT DISMISSAL WITH PREJUDICE WAS APPROPRIATE DESPITE EXPRESSLY FINDING 1) TRIAL COUNSEL’S REQUEST FOR A CONTINUANCE WAS REASONABLE AND 2) “THE RECORD CONTAINS [ ] INFORMATION INCONSISTENT WITH [THE MILITARY JUDGE’S] FINDINGS OF FACT.”

Appellee will file an answer under Rule 22(b) on or before January 15, 2015.

Readers may recall that my analysis of the CCA’s opinion rejecting the Government’s appeal ended with the following paragraph:

While I won’t be surprised if the Judge Advocate General of the Air Force certifies this case to CAAF (especially considering the recent history of JAG certifications), the JAG might want to think twice. The Air Force court’s opinion is pretty strongly worded, and it casts an awfully harsh light. I think it highly unlikely that CAAF will be more charitable.

I stand by my original assessment.

8 Responses to “The Air Force JAG certifies Bowser”

  1. Michael Lowrey says:

    Wouldn’t want to be the poor O-3 that gets to argue this one for the government before CAAF; it certainly won’t be a fun 20+minutes. That is if this case even gets to oral argument — I could easily image CAAF summarily affirming AFCCA.

  2. Ry says:

    Not surprising but foolish in my opinion.

  3. John Blutarsky, Esq. says:

    Was it over when the AFCCA upheld the MJ in Bowser?  Hell no!  And it ain’t over now. ‘Cause when the goin’ gets tough…the tough get Certifed!
    Who’s with me?
    Let’s go!

  4. The Silver Fox says:

    “Behold the pale horse.  The man who sat on him was Death . . . and Hell followed with him.” 

  5. Broken System says:

    I’m with Michael Lowery, the poor O3 that gets to argue this one.  The people in lofty positions that think certifying this to CAAF is a brilliant idea should also get to argue it.  Maybe the thought of having to eat that soup sandwich would change their decision/recommendation.

  6. DCGoneGalt says:

    Listen to the audio of the AFCCA argument.  Government appellate counsel handled the initial onslaught from the bench, argued what I believe to be a terrible case quite well.  When you’re a litigation foot soldier your cases are like your relatives . . . you don’t get to pick ’em.

  7. JustAnotherADC says:

    “Why, Johnny Ringo. You look like somebody just walked over your grave.”

  8. Bill Cassara says:

    A few years ago I had a case at AFCCA. The court certified an issue I did not brief (because I didn’t think it was viable.)  They then reversed on the certified issue.  TJAG certifies to CAAF, who obviously strongly disagreed with AFCCA. So I was left arguing a position I did not think was valid in the first place.  But the judges were very cordial, and cut me lots of slack. They knew I didn’t raise the issue originally, and are smart enough to know why.