CAAF recently granted review and summarily reversed the decision of the Army CCA in a case where one of the members was apparently an interloper on the panel:
No. 16-0233/AR. U.S. v. Michael J. Moody. CCA 20121083. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals and the record of trial, it is noted that the record reflects that the court-martial was called to order pursuant to the following orders:
Court-Martial Convening Order Number 1 dated 7 February 2012, superseded by Order Number 3, dated 4 April 2012, as amended by Order Number 11, dated 21 June 2012, as superseded by Order Number 14, dated 12 July 2012, as amended by Order Number 18, dated 20 September 2012, and as amended by Order Number 25, dated 26 November 2012.
Major Krystal G. Sessoms was detailed to the court-martial by Order Number 14 but was removed from the court-martial by Order Number 18. With that set of orders in the record, the members appeared and were sworn. Major Sessoms did not appear. After numerous challenges were granted, the court fell below quorum.
When the case was called again two months later, the trial counsel announced that Order Number 25 had been signed detailing more members to the court-martial. The newly detailed members each appeared and were sworn. However, without having been detailed anew, Major Sessoms also appeared, was sworn, and heard the case.
Accordingly, it is ordered that said petition is hereby granted on the following specified issue:
WHETHER JURISDICTIONAL ERROR OCCURRED WHEN MAJOR SESSOMS WAS DETAILED, LATER REMOVED BY VICING ORDER, BUT ULTIMATELY WAS SWORN AND HEARD THE CASE.
The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for a new review and consideration of the specified issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2012).
The term vicing in the specified issue refers to the Army practice of identifying new members for a court-martial in an order that details the new members “vice” the old members. See United States v. Cook, 8 M.J. 434, 436 (C.A.A.F. 1998); United States v. McCall, 26 M.J. 804 (ACMR 1988).