Last Thursday CAAF granted review in two cases.

The first is from the Navy:

No. 19-0086/NA. U.S. v. Pedro M. Bess, Jr. CCA 201300311. On consideration of Appellant’s 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 granted on the following issues:

I. WHETHER THE CONVENING AUTHORITY’S SELECTION OF MEMBERS VIOLATED THE EQUAL PROTECTION REQUIREMENTS OF THE FIFTH AMENDMENT.

II. WHETHER THE CONVENING AUTHORITY’S SELECTION OF MEMBERS CONSTITUTED UNLAWFUL COMMAND INFLUENCE.

III. WHETHER THE LOWER COURT ERRED IN AFFIRMING THE MILITARY JUDGE’S DENIAL OF APPELLANT’S MOTION TO PRODUCE EVIDENCE OF THE RACIAL MAKEUP OF POTENTIAL MEMBERS

Briefs will be filed under C.A.A.F. R. 25.

The NMCCA’s decision is here. This is CAAF’s second review in this case, the court having previously reversed the conviction because the military judge provided additional evidence to the members during deliberations without allowing the defense an opportunity to challenge the reliability of that evidence. United States v. Bess, 75 M.J. 70 (C.A.A.F. 2016) (CAAFlog case page). Now, having been re-convicted, Bess challenges the racial composition of the court-martial, asserting that the convening authority excluded members from the panel on the basis of race. The NMCCA rejected the asserted error, however, observing that:

the appellant has not met his initial burden. With the exception of the one member’s questionnaire that had a racial or ethnicity identifying question and response, there is no evidence that the CA [convening authority] knew the race of any of the other nine members detailed to the court-martial. Again, we observe that none of the members listed Navy Region Mid-Atlantic as their parent command on their member questionnaires. As all of the members denied personally knowing the CA during voir dire, we have no reason to suspect that the CA personally knew them and would therefore have known their race. This court cannot even be sure of the members’ race as the record is absent of any questions posed during voir dire to the members by either counsel or the military judge regarding the members’ racial or ethnic background.

Slip op. at 15-16.

The second is from the Army:

No. 19-0139/AR. U.S. v. Alan S. Guardado. CCA 20140014. On consideration of Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO GRANT APPELLANT ARTICLE 13, UCMJ, CREDIT IN CONSEQUENCE OF THE HOWELL v. UNITED STATES, 75 M.J. 386 (C.A.A.F. 2016) VIOLATION PRESENT HERE.

Briefs will be filed under C.A.A.F. R. 25.

The CCA’s opinion is here. Again, this is CAAF’s second review in this case, the court having previously addressed a Hills error in United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017) (CAAFlog case page). The granted issues addresses application of CAAF’s decision in Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) (CAAFlog case page), however Howell is not mentioned in the CCA’s decision.

One Response to “Two new CAAF grants”

  1. Wait. What. ? says:

    Re: Bess
    It seems between NMCCA and the Appellate divisions.. they are clueless as to how members are made available to the convening authority when the convening authority is a Region.  Region staff is VERY small, rarely does a staff member actually sit a court-martial.  Perhaps if the Appellate divisions read the applicable instructions from the Regions or U.S. Fleet Forces for that matter, they’d understand this issue a bit better to argue it.