Yesterday CAAF granted review in two cases; in both the Government prevailed on interlocutory appeals at the Army CCA:

No. 15-0294/AR. U.S. v. Christopher S. Schloff. CCA 20140708.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE ARMY COURT ERRED IN EXPANDING THE DEFINITION OF A “SEXUAL CONTACT” TO A TOUCH ACCOMPLISHED BY AN OBJECT CONTRARY TO THE PLAIN LANGUAGE OF ARTICLE 120(G)(2).

In accordance with Rule 19(a)(7)(A), briefs will not be filed.

I discussed the Army CCA’s opinion in Schloff in a post titled: Can touching with a stethoscope constitute sexual contact?

No. 15-0315/AR. U.S. v. Michael F. Stellato. CCA 20140453.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issues:

I.    WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW IN CONCLUDING THERE WAS NO DISCOVERY VIOLATION AND REVERSING THE MILITARY JUDGE’S REMEDY OF DISMISSAL.

II.   WHETHER THE ARMY COURT OF CRIMINAL APPEAL APPLIED AN ERRONEOUS VIEW OF THE LAW IN REQUIRING THE MILITARY JUDGE TO FIND “WILLFUL IGNORANCE, WILLFUL SUPPRESSION, OR OTHER MISCONDUCT” AS A CONDITION PRECEDENT FOR DISMISSAL WITH PREJUDICE FOR DISCOVERY VIOLATIONS.

In accordance with Rule 19(a)(7)(A), briefs will not be filed.

I analyzed the Army CCA’s opinion in Stellato in a post titled: The Army CCA finds “no support for the proposition that the trial counsel must seek exculpatory evidence outside of the government’s control or possession.”

2 Responses to “CAAF grants review in two Army Article 62 appeals”

  1. RY says:

    maybe I missed it but I don’t see anything about a stay of proceedings.  It is rare CAAF grants Art 62 appeals but unless trial is stayed, it may be moot before the appeal is decided.

  2. Dwight Sullivan says:

    [STANDARD DISCLAIMER:  This comment is made in my personal capacity and shouldn’t be imputed to DoD or anyone or anything else.]
     
    RY, in my experience, trial judges whose rulings were overturned by a CCA on an Article 62 appeal were often content to put the trial on hold while the defense pursued CAAF litigation to vindicate the military judge’s original ruling.  In several Air Force cases, the government advanced the legally erroneous argument that a military judge was without power to do so.  After AFCCA rejected that argument, CAAF denied at least two government-filed writ appeal petitions advancing the same claim.  See United States v. Spath, 69 M.J. 173 (C.A.A.F. 2010) (mem.); United States v. Townsend, 69 M.J. 169 (C.A.A.F. 2010) (mem.); see also United States v. Kratz, 69 M.J. 85 (C.A.A.F. 2010) (mem.) (denying government’s writ appeal petition as moot).