Last month CAAF heard oral argument on whether to grant a writ of mandamus to Army Major Hasan – who was sentenced to death for 13 specifications of murder and 32 specifications of attempted murder (the #2 Military Justice Story of 2013) – and then CAAF summarily denied the request. Last week CAAF denied a second requested writ:

No. 19-0053/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. Appellate defense counsel petitioned this Court for extraordinary relief in the nature of a writ of mandamus, seeking access to matters that were sealed by the military judge at trial as being privileged between Major Hasan and his standby counsel.[1] In two decisions, the United States Army Court of Criminal Appeals denied appellate defense counsel access to these sealed privileged materials because appellate defense counsel admitted that Major Hasan had not authorized them to review those documents. United States v. Hasan, No. ARMY 20130781 (A. Ct. Crim. App. July 6, 2018) (order); United States v. Hasan, No. ARMY 20130781 (A. Ct. Crim. App. Oct. 16, 2018) (order).

To prevail on a writ of mandamus, the petitioner must show that: “(1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances.” Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012) (citing Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004)). Appellate defense counsel failed to establish (2).

We find unpersuasive appellate defense counsel’s argument that issuance of the writ is clear and indisputable under Rule for Courts-Martial 1103A. Although that rule does not except attorney-client privileged material from its ambit, neither does it include it. On consideration of the petition and the briefs of the parties, as appellate defense counsel failed to establish a clear and indisputable right to the writ it is ordered that the petition is denied.

[1] Although captioned as Hasan v. United States Army Court of Criminal Appeals, it appears that Major Hasan has not authorized this petition, as he has not waived his attorney-client privilege to these materials.

Additionally, on Monday CAAF ordered supplemental briefs in the Army case of United States v. Stout, No. 18-0273/AR (CAAFlog case page):

No. 18-0273/AR. U.S. v. Norman R. Stout. CCA 20120592. On consideration of the briefs of the parties on the issue granted on August 6, 2018, and oral argument held on December 4, 2018, it is ordered that the parties file supplemental briefs on the following additional issues:

I. WHETHER UNITED STATES v. BROWN, 4 C.M.A. 683, 16 C.M.R. 257 (1954), IS NOT CONTROLLING IN THIS CASE BECAUSE THE DECISION PREDATES THE PROMULGATION OF THE APPLICABLE VERSION OF R.C.M. 603(d).

II. WHETHER THE APPLICABLE VERSION OF R.C.M. 603(d) IS CONTRARY TO AND INCONSISTENT WITH THE APPLICABLE VERSION OF ARTICLE 34(c), UCMJ, AND THEREFORE VOID TO THE EXTENT IT PROHIBITS MAJOR CHANGES, BEFORE REFERRAL, TO CHARGES AND SPECIFICATIONS THAT WERE AMENDED TO “CONFORM TO THE SUBSTANCE OF THE EVIDENCE CONTAINED IN THE REPORT OF THE INVESTIGATING OFFICER.” ARTICLE 34(c), UCMJ, 10 U.S.C. § 834(c) (2012).

The briefs of the parties shall be filed concurrently within 15 days of the date of this order.

CAAF originally granted review of one issue questioning whether changes to the time frame of three specifications were proper, and it heard oral argument on December 4, 2018.

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