The Coast Guard CCA finds that an Article 32 Preliminary Hearing Officer’s determination about probable cause is not binding
In a published decision in United States v. Meador, 75 M.J. 682, No. 20160419 (C.G. Ct. Crim. App. Apr. 19, 2016) (link to slip op.), a three-judge panel of the Coast Guard CCA grants a Government appeal and reverses the military judge’s ruling that dismissed a charge because the Article 32 Preliminary Hearing Officer (PHO) found that probable cause did not exist. Writing for the panel, Judge Judge holds that:
The statutory scheme does not make the PHO’s determination as to probable cause binding on the SJA or the convening authority (CA).
Slip op. at 2. The case involves the same military judge, and the CCA’s decision is authored by the same appellate military judge, as in the CCA’s recent decision in United States v. Mercier, 75 M.J. 643, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) (discussed here), in which the CCA held that the Government must present some evidence to support a Staff Judge Advocate’s Article 34(a)(2) determination that s specification is warranted by the evidence.
In Meador, comparing the text of Article 32 to that of Article 34, Judge Judge finds that:
There is nothing in this statutory scheme that makes a determination of probable cause by the PHO a precondition of referral to a general court-martial, nor is there any language making the PHO’s determination binding on the SJA or the CA. By contrast, the SJA’s advice is a clear precondition of referral to a general court-martial. The statutory language consequently provides no support for the proposition that the PHO’s determination of probable cause is dispositive.
Slip op. at 3.