Last week CAAF granted review – and specifically invited amicus briefs from the appellate divisions – in an Air Force case that questions whether an appellate military judge may sit on both a Court of Criminal Appeals and the United States Court of Military Commission Review:
No. 16-0651/AF. U.S. v. Nicole A. Dalmazzi. CCA 38808. 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 issues:
I. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, IS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT’S CASE.
II. WHETHER JUDGE MARTIN T. MITCHELL’S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATES THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A SUPERIOR OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.
Briefs will be filed under Rule 25.
The Chiefs of the Appellate Defense and Appellate Government Divisions of the United States Army, the United States Coast Guard, and the United States Navy-Marine Corps are invited to file amicus curiae briefs on these issues. These briefs will be filed under Rule 26.
Just two years ago, in United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), a unanimous CAAF concluded that the appointment of a civilian Air Force employee to the Air Force Court of Criminal Appeals was invalid. Then, in another unanimous opinion issued last year in United States v. Jones, 74 M.J. 95 (C.A.A.F. Mar. 11, 2015) (CAAFlog case page), CAAF rejected application of the de facto officer doctrine to the appointment.