CAAF granted review in two cases on the 12th.
The first grant involves an issue of unlawful command influence related to the Heritage Brief (our #4 Military Justice Story of 2014):
No. 16-0586/MC. U.S. v. Nhubu C. Chikaka. CCA 201400251. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. WHERE THE MILITARY JUDGE ADMITTED ON THE MERITS A CAMPAIGN PLAN TO “FULLY OPERATIONALIZE THE COMMANDANT’S GUIDANCE” FROM THE HERITAGE TOUR, AND THEN DURING SENTENCING ADMITTED A PICTURE OF THE COMMANDANT AND ALLOWED APPELLANT’S COMMANDING OFFICER TO TESTIFY THAT IT WAS IMPORTANT FOR THE MEMBERS TO ADJUDGE A HARSH SENTENCE, DID THE LOWER COURT ERR IN FAILING TO FIND EVIDENCE OF UNLAWFUL COMMAND INFLUENCE SUFFICIENT TO SHIFT THE BURDEN TO THE GOVERNMENT TO DISPROVE UNLAWFUL COMMAND INFLUENCE IN THIS CASE?
II. WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, “IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY,” WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.
Briefs will be filed under Rule 25 on Issue I only.*
* Judge Ryan has recused herself in this case and did not participate.
(emphasis in original).
The NMCCA’s opinion is available here.
The second grant challenges the admission of a pretrial identification of the appellant by use of a voice recording (a voice lineup):
No. 16-0731/AR. U.S. v. Austin L. Hendrix. CCA 20140476. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED A DEFENSE MOTION TO SUPPRESS RELATED TO THE IDENTIFICATION OF THE APPELLANT DURING A VOICE LINEUP.
II. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.
III. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.
IV. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.
V. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING APPELLANT’S MOTION TO COMPEL AN EXPERT CONSULTANT, EP, IN THE FIELD OF AUDIO FORENSIC SCIENCE AND VOICE IDENTIFICATION.
Briefs will be filed under Rule 25 on Issue I and Issue V only.
The Army CCA’s opinion is available here.