CAAF granted review in two cases yesterday. The first was previously certified to CAAF by the Judge Advocate General of the Coast Guard:

No. 15-0384/CG. U.S. v. Christopher S. Cooley. CCA 1389.  On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE GOVERNMENT VIOLATED APPELLANT’S RIGHTS UNDER ARTICLE 10, UCMJ, WHEN THE GOVERNMENT POSSESSED KEY EVIDENCE AGAINST APPELLANT ON JULY 20, 2012, AND FEBRUARY 5, 2013, YET MADE NO MOVE TO PROSECUTE APPELLANT FOR THESE OFFENSES UNTIL JUNE OF 2013, DESPITE HIS PRETRIAL CONFINEMENT FROM DECEMBER 20, 2012.

Briefs will be filed under Rule 25.

I analyzed the CCA’s opinion in this January post titled The Coast Guard CCA raises Article 10 from the dead. I noted the JAG’s certification in this post. And in this post I noted Cooley in the context of CAAF’s grant of review in the Marine Corps case of United States v. Wilder, No. 15-0087/MC. In Wilder, CAAF will consider whether the substantial information rule persists after the promulgation of R.C.M. 707.

Between Cooley and Wilder, Article 10 might be dragged back from the afterlife next term…

The second grant involves application of the maximum sentence determination provisions of R.C.M. 1003(c)(1)(B):

No. 15-0477/AF. U.S. v. Nicholas E. Busch. CCA 38530. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

AT THE TIME OF APPELLANT’S ALLEGED SEXUAL ABUSE OF A CHILD OFFENSE, THE PRESIDENT HAD NOT SET THE MAXIMUM PUNISHMENT FOR THE OFFENSE. THE MILITARY JUDGE USED A LATER-ENACTED EXECUTIVE ORDER TO SET THE MAXIMUM PUNISHMENT, EVEN THOUGH IT INCREASED THE CONFINEMENT RANGE FROM ONE YEAR TO FIFTEEN YEARS. WAS THE EX POST FACTO CLAUSE VIOLATED?

Briefs will be filed under Rule 25.

I discussed the AFCCA’s decision in this March post titled The Air Force CCA grapples with R.C.M. 1003(c)(1)(B).

4 Responses to “CAAF expands its review of Cooley, and grants in Busch”

  1. Monday morning QB says:

    Seems to me too make things very complicated and too subjective to adopt some sort of rule that says when the government has “substantial” or “key” evidence, then a clock is started.  What does “substantial” or “key” mean anyway?  It makes everything an eye of the beholder type of analysis.  The 707 rule and its jurisprudence gives us a pretty bright line analysis, and if the G arraigns on day 119 just to stop the click, the accused can make a motion that it was just a sham arraignment and the G was not really ready to go to trial.  Article 10 has always been a more subjective analysis, but it puts the G on notice that when they put the accused in PTC they better proceed with reasonable diligence and note everything they have done day by day in writing.  I think as the long as the G satisfied 707 and also satisfied the strictures of Article 10, they can sit on the evidence as long as they need in order to perfect their case.  Otherwise we are going to have judges all over the place trying to determine what is “substantial” or “key” evidence and what isn’t.    

  2. Alfonso Decimo says:

    @Monday: You are correct and the CAAF will no doubt reach the same conclusion.

  3. Zachary D Spilman says:

    The distinguishing fact in Wilder and Cooley is that each accused was already in pretrial confinement for other charges, and that in both cases there was an arraignment more than 120 days after the imposition of pretrial confinement. 

  4. k fischer says:

    To quote my 65 year-old female neighbor who made a similar comment regarding Columbus PD investigating an act of vandalism to her porch furniture: Article 10 is about as useful as teets on bacon.