In United States v. Katso, 74 M.J. 273 (C.A.A.F. Jun. 30, 2015) (CAAFlog case page), CAAF reversed the published decision of the Air Force CCA that found a Confrontation Clause violation in the testimony of a Government DNA expert who did not conduct the DNA testing at issue in the case, concluding that the expert merely (and properly) reviewed and relied upon the work of others to reach his own opinions.

The Air Force CCA’s short-lived opinion would have been a significant Confrontation Clause decision, and CAAF’s decision was a dramatic reversal for Airman Basic (E-1) Katso whose convictions of aggravated sexual assault, burglary, and unlawful entry, and whose sentence of confinement for ten years, total forfeitures, and a dishonorable discharge, had been reversed by the Air Force CCA, with a rehearing authorized. Katso sought certiorari of CAAF’s decision, but it was denied, and the case was returned to the Air Force CCA for further review.

There, however, things got even more interesting, leading to a second published decision of the Air Force CCA, the award of 365 days of confinement credit to Katso, and now a second certification back to CAAF.

After the Air Force CCA issued its original opinion in the case, on April 11, 2014, Katso had a budding interest in release from post-trial confinement as a result of that opinion. A CCA doesn’t have the authority to release an accused but rather, under Article 66(e), the courts depend on the Judge Advocate General (JAG) to instruct the convening authority to take appropriate action after a CCA decides a case. The statute provides, however, that such instructions are not to be issued if “there is to be further action” in the case. Accordingly, a CCA’s decision is said to be inchoate until a JAG gives it force, and a JAG is not required to give a decision force if there will be further review. But even if there will be further review, once the decision to seek such review is made then “an accused’s interest in the favorable decision of the court below (even if inchoate) requires either that the accused be released in accordance with that decision or a hearing on continued confinement be conducted under RCM 305.” United States v. Miller, 47 M.J. 352, 362 (C.A.A.F. 1997).

This is a somewhat complicated paradigm and sometimes an appellant and his counsel don’t quite understand how it works, but the basic rule is that while an appellant might win his case at the CCA, he has no right to release from confinement in connection with that win until the time to certify the case expires or the case is certified (whichever happens first).

This right was triggered in Katso when the Air Force JAG certified the case to June 9, 2014. Katso, however, wasn’t released. Rather, he remained in confinement pending CAAF’s review, in a status that is the equivalent of pretrial confinement. That’s not unusual, though it’s also not always the case. For Katso, however, a year passed before he received the required hearing on continued confinement under Rule for Courts-Martial 305 (the hearing wasn’t conducted until he requested it). That’s a problem.

R.C.M. 305 is the procedure for placing a military accused into pretrial confinement where (unlike civilian detention before trial) there is no possibility for release on bail. Pretrial confinement is specifically authorized by Article 9, but the Rule grew out of the decision of the Court of Military Appeals in Courtney v. Williams, 1 M.J. 267, 270-271 (C.M.A. 1976), that applied the Supreme Court’s decision in Gerstein v. Pugh, 420 U.S. 103, 111 (1975), and concluded that a neutral and detached magistrate must not only determine whether probable cause exists to detain a military accused (in accordance with Gerstein), but also must decide if the accused should be detained (because of the unavailability of bail).

R.C.M. 305 details a three-step process for review of pretrial confinement decisions. First, within 48 hours of the imposition of confinement, a neutral and detached officer makes a probable cause determination. See County of Riverside v. McLaughlin, 500 U.S. 44, 111 (1991) (probable cause determinations made after 48 hours are presumed untimely). See also, generally, United States v. Rexroat, 38 M.J. 292 (C.M.A. 1993) (reviewing cases). Next, within 7 days of the imposition of confinement, a neutral and detached officer “shall review the probable cause determination and necessity for continued pretrial confinement.” R.C.M. 305(i)(2). Finally, once (and if) the charges are referred for trial by court-martial, “the military judge shall review the propriety of pretrial confinement upon motion for appropriate relief.” R.C.M. 305(j).

R.C.M. 305(k) also provides a remedy for violation of the Rule’s procedure:

The remedy for noncompliance with subsections (f), (h), (i), or (j) of this rule shall be an administrative credit against the sentence adjudged for any confinement served as the result of such noncompliance. Such credit shall be computed at the rate of 1 day credit for each day of confinement served as a result of such noncompliance. The military judge may order additional credit for each day of pretrial confinement that involves an abuse of discretion or unusually harsh circumstances.

This remedy is what gets Katso a year of credit.

Writing for a three-judge panel of the Air Force CCA, Judge Santoro explains that CAAF’s decision in Miller (discussed above) – requiring that “a hearing on continued confinement be conducted under RCM 305” be conducted after a CCA’s decision is certified to CAAF or the time for such certification expires – applied to Katso, and that the hearing was required within seven days of the certification. But, since no such hearing was held until a year later, Judge Santoro turns to the question of remedy:

Because Miller could not have intended for each aspect of R.C.M. 305 to control the continued confinement review, we are also not convinced that R.C.M. 305(k) must be the source of the remedy. We do believe, however, that the President’s determination that confinement without following established procedural protections merits day-for-day administrative credit applies equally to Miller violations as it does to pre-trial confinement review violations.

Therefore, we hold that the remedy for the Government’s failure to provide a Miller review within seven days of certification is day-for-day administrative credit (beginning on the eighth day) against the sentence as finally affirmed, and if the affirmed sentence does not include confinement sufficient to offset all the credit to which the appellant is entitled, the credit shall be applied against hard labor without confinement, restriction, fine, and forfeiture of pay, in that order, using the conversion formula under R.C.M. 1003(b)(6) and (7). The credit shall not be applied against any other form of punishment.

United States v. Katso, 76 M.J. 704, No. 38005 (rem), slip op. at 8-9 (A.F. Ct. Crim. App. Feb. 2, 2017) (emphasis added) (link to slip op.). Accordingly, the CCA grants Katso 365 days of administrative credit.

Chief Judge Drew, however, writes a separate dubitante (doubting, but not dissenting) opinion that is skeptical of this remedy:

Application of the Miller rule in this case results in an inappropriate windfall for Appellant. Unlike the confinees in Moore and Miller, Appellant waited nearly a year from TJAG’s 9 June 2014 certification to raise the issue of his continued confinement. He did so on 3 June 2015. Three days later, the convening authority directed a hearing to consider the matter and that hearing was held on 15 June, during which the hearing officer determined that Appellant should remain in confinement. On 30 June, the CAAF reversed our prior decision, reinstating Appellant’s convictions for sexual assault and burglary. The record does not reflect why the Government did not, on its own initiative, hold a Miller hearing shortly after TJAG’s certification. However, unlike the confinee in Kreutzer, who remained on death row after the CCA set aside his death sentence until the CAAF issued a writ of mandamus, the conditions of Appellant’s confinement since his trial have at all times been proper for adjudged and sentenced prisoner with the type of sentence that our decision today finds appropriate. We have found no prejudice Appellant has suffered for the procedural timing failure to follow the Miller rule. Miller required a review of Appellant’s continued confinement. That review determined that continued confinement was appropriate. Because that review was held shortly after Appellant requested it but a year after TJAG certified his case, the majority opinion provides an R.C.M. 305(k)-like automatic day-for-day administrative credit, granting Appellant 365 days administrative credit. I doubt that R.C.M. 305 or Article 66(e) demands such a result.

Slip op. at 13-14.

On March 31, 2017, the Judge Advocate General of the Air Force certified the case back to CAAF:

No. 17-0326/AF. U.S. v. Joshua Katso. CCA 38005. 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 issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT UNITED STATES v. MILLER, 47 M.J. 352 (C.A.A.F. 1997) REQUIRED THE GOVERNMENT TO HOLD A CONTINUED CONFINEMENT HEARING WITHIN 7 DAYS OF THE JUDGE ADVOCATE GENERAL’S DECISION ON CERTIFICATION.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT GOVERNMENT’S FAILURE TO HOLD A CONTINUED CONFINEMENT HEARING WITHIN 7 DAYS OF THE JUDGE ADVOCATE GENERAL’S DECISION ON CERTIFICATION AUTOMATICALLY RESULTED IN DAY-FOR-DAY SENTENCING CREDIT.

III. WHETHER APPELLEE WAS PREJUDICED WHEN THE GOVERNMENT FAILED TO HOLD A CONTINUED CONFINEMENT HEARING WITHIN 7 DAYS OF CERTIFICATION.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before May 1, 2017.

CAAF’s first decision in Katso – resolving the Confrontation Clause issue – was somewhat anti-climactic, with Judge Ryan’s opinion of the court following settled precedent to reach a straightforward conclusion: An expert can properly testify about his own opinions of another person’s work, and the defense can challenge the limited nature of that opinion based on the fact that the expert did not actually perform the work at issue.

Resolution of this new certification, however, will likely require the court to tread new ground.

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