Military law recognizes three types of re-trials: a rehearing, a new trial, and an other trial. See R.C.M. 810. A rehearing (on findings, sentence, or both) may be ordered when findings or sentence are set-aside, and is a continuation of the former proceedings; a new trial may be ordered when new evidence or a fraud on the court is discovered; an other trial can occur after the original proceedings are declared invalid due to lack of jurisdiction or failure to state an offense. Separate from these – perhaps – is the possibility of a totally separate court-martial involving new charges based on the same allegations after the original charges are dismissed.

These possibilities are at the heart of a case recently certified to CAAF by the Judge Advocate General of the Air Force:

No. 17-0079/AF. United States, Appellant v. Patrick Carter, Appellee. CCA 38708. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:


Back in 2010, Master Sergeant Carter was convicted of child endangerment and indecent acts with a child, both in violation of Article 134. The specifications, however, failed to allege a terminal element and therefore failed to state offenses. Because there was no objection at trial, the Air Force CCA applied CAAF’s decision in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page). The CCA reversed the findings. United States v. Carter, No. 37715 (A.F. Ct. Crim. App. Jan. 4, 2013) (link to slip op.) (noted here). CAAF subsequently summarily affirmed the CCA’s decision (noted here).

The CCA’s 2013 decision left Carter convicted of nothing, and the opinion concluded with the following language:

Having considered the record in light of Humphries, the findings of guilty to Charge III and its specifications and the sentence are set aside and dismissed. The record of trial is returned to the Judge Advocate General for remand to an appropriate convening authority.

Carter, No. 37715, slip op. at 5-6.

Subsequent to this decision, on March 31, 2014, new charges were preferred. The new charges were identical to the charges reversed in the CCA’s 2013 decision, except that they included a terminal element. The new charges were referred to a new general court-martial. A military judge denied Carter’s motions to dismiss on speedy trial and statute of limitations grounds, and he was convicted. Significantly, the parties at trial agreed that the proceedings were an other trial (and not – as one might expect from the fact that the original charges didn’t state offenses and that new charges were preferred and referred – a new and independent proceeding).

The CCA, however, reversed again. In United States v. Carter, No. 38708 (A.F. Ct. Crim. App. Jul. 21, 2016) (link to slip op.), a three-judge panel of the Air Force CCA split 2-1 to conclude that the court’s 2013 decision did not authorize further proceedings. Senior Judges Hecker and Mitchell agreeing that the charges should be dismissed with prejudice because the original decision did not order a rehearing and this action prohibited any further proceedings regardless of the label applied.

Judge Brown dissented, concluding that:

Appellant’s second court-martial is not subject to, or expressly impacted by, the terms of the remand of his first court-martial. The second court-martial was an independent de novo proceeding, not a continuation of his initial trial. Cf. Chapman v. United States, 75 M.J. 598 (A.F. Ct. Crim. App. 2016) (distinguishing between a writ of habeas corpus that is a new proceeding and a writ of coram nobis that is a continuation of the same proceeding). The Charge and Specifications from Appellant’s first court-martial were dismissed and that case ended. Our dismissal of the Charge and Specifications in our January 2013 decision was not with prejudice, nor did it otherwise limit the convening authority from conducting a second proceeding involving the misconduct alleged in those specifications. As such, the convening authority was fully empowered to prefer and refer charges related to that misconduct, subject to applicable speedy trial, double jeopardy and statute of limitations considerations.

Slip op. at 17 (emphasis added).

While I think Judge Brown’s conclusion that the second trial was an independent proceeding is the more compelling analysis, CAAF will now settle the question.

3 Responses to “The Air Force JAG certifies a case involving the scope of a remand”

  1. Bill Cassara says:

    The Duffel Blog needs to do a satirical piece in which AFTJAG certifies a case where the appellant lost, and in which it would benefit the defense.

  2. Zeke Kennen says:

    If, as the government contends, this “other trial” really is a new beast, and is not merely a rehearing of the same proceeding wherein Carter was originally placed in jeopardy, then how is this “other trial” constitutionally permissible under the Double Jeopardy clause?  I thought the whole theory behind re-hearings was that the accused was not being put in jeopardy twice because the rehearing was merely a continuation of the original trial.  

  3. Zachary D Spilman says:

    One can’t be placed in constitutional jeopardy by a charge that fails to state an offense.