In United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), CAAF found that a challenge to the participation of a judge of the United States Court of Military Commission Review (USCMCR) on the panel of the Air Force Court of Criminal Appeals was moot because the judge had not yet been appointed as a USCMCR judge when the CCA decided the case.

CAAF granted review in Dalmazzi in August, and dozens of trailer cases followed. Mootness in Dalmazzi doesn’t resolve (all of) those trailer cases, and so on Friday CAAF ordered briefing in one of them:

No. 16-0671/AF. U.S. v. Keanu D.W. Ortiz. CCA 38839. On further consideration of the granted issues in the above-entitled case (Daily Journal, October 27, 2016), it is ordered that Issue II is hereby amended as follows:

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 PRINCIPAL OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

The petition for grant of review is also granted on the following specified issue:

III.  WHETHER JUDGE MARTIN T. MITCHELL WAS IN FACT A PRINCIPAL OFFICER FOLLOWING HIS APPOINTMENT BY THE PRESIDENT TO THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW IN LIGHT OF THE PROVISIONS OF 10 U.S.C. § 949b(4)(C) AND (D), AUTHORIZING REASSIGNMENT OR WITHDRAWAL OF APPELLATE MILITARY JUDGES SO APPOINTED BY THE SECRETARY OF DEFENSE OR HIS DESIGNEE.

The parties will file contemporaneous briefs and a joint appendix on the granted issues as amended and the specified issue on or before January 24, 2017. Reply briefs will not be filed. Amicus curiae briefs under Rule 26(a)(1) will be filed on or before January 24, 2017, and motions for leave to file amicus curiae briefs under Rule 26(a)(3) will be filed on or before January 17, 2017. Should said motions be granted, amicus curiae briefs under Rule 26(a)(3) will also be filed on or before January 24, 2017.

(emphasis in original).

Ortiz is also something of a Hills (CAAFlog case page) trailer. CAAF granted review in Ortiz on November 29, 2016, and Issue I is:

WHETHER THE MILITARY JUDGE WRONGLY APPLIED MILITARY RULE OF EVIDENCE 414 TO CHARGED MISCONDUCT, THEREBY LOWERING THE GOVERNMENT’S BURDEN OF PROOF AND VIOLATING APPELLANT’S CONSTITUTIONAL RIGHTS.

[correction – the Nov. 29 grant involves a different appellant named Ortiz]

By my count, including trailers granted yesterday, CAAF has granted review of the CMCR judge issue in 71 69 cases (including Dalmazzi). Of those, 61 are from the Army, 8 are from the Air Force, and 2 are from the Navy (Navy cases wrongly counted; see comments).

Dalmazzi was an Air Force case, but considering that the overwhelming majority of granted cases involving this issue are from the Army, I think it’s strange that CAAF would decide to hear argument in another Air Force case instead of an Army case.

Disclosure: In my personal capacity I represent an Army appellant whose case is before CAAF with CMCR judge issues.

5 Responses to “CAAF picks a replacement for Dalmazzi”

  1. Passing By says:

    In regards to your last question as to why CAAF granted another AF case instead of one from the Army, I believe the Court was applying the long-standing common law principle of finders custodibus.

  2. Zachary D Spilman says:

    I’ve corrected this post to reflect that a different appellant named Ortiz presents the Hills-type issue. 

  3. Will Hinson says:

    Which 2 cases are from the Navy? I’m having trouble finding them. 
     

  4. Zachary D Spilman says:

    I’m tracking CMCR judge issues in Pabelona, No. 16-0214/NA, and Berger, No. 16-0669/NA.

     

  5. Zachary D Spilman says:

    And on further review I see that my tracker is wrong and both Pabelona and Berger are McClour trailers. Thank you for the question, Will Hinson. Post corrected.