No. 17-0084/AR. U.S. v. James N. Costigan. CCA 20150052. 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, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 414 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

Briefs will be filed under Rule 25 on Issue I only.

I don’t see an opinion on the Army CCA’s website (suggesting that the court summarily affirmed).

This is the fourth case before CAAF involving application of Hills (our #3 Military Justice Story of 2016) in judge-alone trials. The other three are Hukill (grant discussed here), Phillips (grant discussed here), and Hazelbower (grant discussed here).

CAAF is also considering a Hills issue in Berger (grant discussed here), however the court ordered no briefs.

CAAF summarily reversed and remanded five Hills trailers last term. None (so far) this term.

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