Last week CAAF granted review in this Army case:
No. 19-0411/AR. U.S. v. Norman L. Clark, Sr. CCA 20170023. 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 granted on the following issues:
I. DID THE MILITARY JUDGE ERR IN APPLYING R.C.M. 914?
II. IF THE MILITARY JUDGE ERRED, UNDER WHAT STANDARD SHOULD THIS COURT ASSESS PREJUDICE?
III. WAS THERE PREJUDICE UNDER THE APPLICABLE STANDARD OF REVIEW?
Briefs will be filed under Rule 25.
R.C.M. 914 is the military’s version of the Jencks Act (18 U.S.C. § 3500), and it was last considered by CAAF in the interlocutory case of United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015) (CAAFlog case page), in which the court unanimously affirmed the trial-stage ruling of a military judge that stuck the entire testimony of an alleged victim of sexual assault because the Government lost most of the recording of the alleged victim’s testimony during the Article 32 pretrial investigation.
The Army CCA’s opinion in Clark is available here.