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.

6 Responses to “CAAF to review whether an appellate military judge can sit on both a CCA and the CMCR”

  1. Private Joker says:

    CAAF: Gov’t counsel, are you suggesting the Judge Mitchell is an inferior officer in one job and a superior officer in another? What’s that supposed to be, some kind of sick joke.
    Gov’t Counsel: No, Your Honor. I think DoD was trying to suggest something about the duality of man, sir.
     
    CAAF : The what?
     
     Gov’t Counsel: The duality of man. The Jungian thing, sir.
     
    CAAF:  Whose side are you on, Counsel?
     
    Gov’t Counsel:  Our side, Judge.
     
    CAAF:  Don’t you love your country?
     
    Gov’t Counsel:  Yes, sir.
     
    CAAF:  Then how about getting with the program? Why don’t you jump on the team and come on in for the big win?
     
    Gov’t Counsel:  Yes, Judge.
     

  2. afjag says:

    @Private Joker; you, Sir (or Ma’am), get my vote for the illustrious title of “Winner of the Internet” for 20160822. Congratulations.

  3. Poge Colonel says:

    Inside every CCA judge there is a principle officer trying to get out.  

  4. Anon says:

    This grant is a bit of a head scratcher.  At first glance for the first issue, the relevant statute authorizes appellate military judges to be assigned on the cmcr.  I doubt that such an assignment negates an assignment to the CCA.  As to the second issue, it seems that the Supreme Court’s decision in Weiss is controlling, as so long as the AMJ is a commissioned officer.  In that instance, they’re not appointed to either the CCA of the CMCR. Both statutes refer to assignments, not appointments, iirc.
    I maybe missing something fundamental- wouldn’t be the first time.
     
     
     
     
     

  5. Philip Cave says:

    I am reminded of the complexities that may be involved with the commissions.
     
    https://www.lawfareblog.com/al-nashiri-argument-preview-cmcrs-appointments-clause-problem

    At its simplest, Nashiri’s “merits” argument is a challenge to the inclusion of military (as opposed to civilian) judges on the CMCR. (Although Nashiri has arguments under both the Appointments Clause and the Commander-in-Chief Clause, the latter are far weaker, as Marty Lederman has explained. Thus, I’ll focus here on the Appointments Clause issue.)

     
    http://www.caaflog.com/2011/01/24/cmcr-judges-recuse-themselves/
     
    The AFCCA opinion does not show a challenge to Judge Mitchell made below.
     
    http://afcca.law.af.mil/content/afcca_opinions/cp/dalmazzi-38808.u.pdf
     
    What’s the size of the Dalmazzi trailer park?

  6. Zachary D Spilman says:

    The judges at issue were first assigned to the CMCR by the Secretary of Defense (10 U.S.C. § 950f(b)(2)), but then were appointed by the President and confirmed by the Senate (10 U.S.C. § 950f(b)(3)) after the DC Circuit decided an Appointments Clause challenge to the assigned judges. See In re Al-Nashiri, 791 F.3d 71 (D.C. Cir. 2015).

    So now we have CCA judges who are also principal officers with appointments to an Article I court of record.