Maj Troy H. Campbell, USMC

            CDR Robert J. Crow, JAGC, USN

            CAPT Terry C. Ganzel, JAGC, USNR

            CDR George Glenn Gerding, JAGC, USNR

            CDR John S. Han, JAGC, USNR

            CDR Donald C. King, JAGC, USN    

            CDR Brian C. Lansing, JAGC, USNR

            LCDR M. J. Luken, JAGC, USN

            CDR Monte G. Miller, JAGC, USNR

            LCDR Robert P. Monahan Jr., JAGC, USN

            CDR W. A. Record, JAGC, USN

            CDR Aaron C. Rugh, JAGC, USN

On the active-duty side, CDRs Crow, King, and Rugh are all plank-owner experts of the Navy Military Justice Litigation Career Track.  LCDRs Luken and Monahan are specialists on the track.  CDR Record is the only non career track pick on the active side.   Congrats to all!

Speaking of judges, the Navy and Marine Corps held a judicial screening board several weeks ago.  Although I did not have a package before the board, I know a few that did.  But no board results.  I assume that the JAG has to approve them.  Perhaps there is a secret vote in Reno this week.   In any event, we should get those results soon.  Good luck to those that applied.  This may be one of the first boards where a significant number of the Navy’s military justice litigation career track folks applied.  It should be interesting to see who is picked.

The Court does make a new exception for cases where the search is for evidence “relevant to the crime of arrest” that might be found in the vehicle. But the Court notes that arrests for traffic violations will not usually provide a reasonable basis to believe the vehicle contains relevant evidence (slip op. at 10).

LCDR Julia Crisfield pointed out to me the conflict with Mil. R. Evid. 314(g)(2)(A) which seems to allow for a search incident to arrest of an automobile even where the occupant is not within reaching distance of the interior of the vehicle.

1- The Army has apparently developed a similar sort of program as the Navy’s Military Justice Litigation Qualification career path. It was referred to as “S.I.” Any of our Army friends have more details? Can somebody email us with the instructions/references establishing this program? From what I could gather, it was different than the Navy’s litigation qualification in three important respects: (1) it does not include precept language designed to highlight the need for such qualified officers at promotion boards, and (2) there seemed to be less emphasis on the assignment of qualified officers into litigation billets as there is in the Navy, and (3) there are four levels instead of two. Folks with more information please correct me and fill out the little I was able to pick up. I was hampered in my understanding of the brief by my ignorance of Army abbreviations.

2- CAAFlog and Mr. (vice Col) Sullivan received a brief shout out when Kennedy v. Louisiana was discussed.

3- Although I generally agree with the majority of our contributors that the commissions is off-topic or at least darn close, LCDR Brian Mizer did give a very interesting account of the OMC from the defense counsel perspective. What was most interesting was the reaction of the audience of around 300 uniformed attorneys. LCDR Mizer was brutally honest and sarcastic. It would have been easy to be offended by him if you were looking for excuses, but the audience seemed very well disposed to him, asking several probing questions. The vast majority of attendees were very receptive to his insights and opinions, or at least those who were not did not make many comments or display a reaction.

I wanted to give a particular nod to MAJ Charles Neill, JA, USA. Many of the speakers did a good job, but MAJ Neill seemed to have that right balance of useful information, clear presentation, with the right amount of clever humor thrown in that so many of the Army (and Navy at NJS) instructors aim for, and that so few actually can pull off.

The really interesting part to me is NMCCA’s decision appears to be classified. I cannot find it anywhere. Any dead or mythological bloggers out there that have extra-sensory powers that can help track down the missing NMCCA opinion?
(As an aside, nice to hear from you ADM Nelson, it’s been a while)

This is in addition to the writ of prohibition that CAAF denied at 64 M.J. 238 on 31 Oct 2006.

Why wouldn’t the opinion be posted on NKO or the website?

And remember footnote 19 in the Moreno opinion suggesting that there might be Sixth Amendment prejudice if there was a problem on retrial . . . .

Moreno appears to be a problem for the government that is not going away.

Misc. No. 07-8012/NA. Jacob DENEDO, Appellant v. United States, Appellee. CCA 99-00680. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of error coram nobis was filed under Rule 27(b) on March 29, 2007, and placed on the docket this 30th day of March, 2007.

Anybody out there have any details on the issues involved?

Judge Ryan asks the first question. She starts off with, “can I ask a couple of questions?” Deadpan, Maj Belliss replies, “absolutely.”

There was a very interesting exchange regarding an affidavit by the CA explaining himself. Judge Stucky asked Maj Belliss about the affidavit. But back on 1 Feb 2007, CAAF denied the government’s motion to attach an affidavit. As Maj Belliss started to respond, Judge Baker jumped in asking if the affidavit was even before them. CJ Effron then jumped in with an unrelated question.

The argument was a great example of every case can be interesting and counsel should never shortchange an argument. BZ to Maj Belliss in what I believe is his first oral argument.

United States v. Wise looked at the very interesting question of confining a Soldier with enemy prisoners of war (EPWs). Judge Baker in his majority opinion gets to the bottom line quickly; Appellant did not waive his claims despite his failure to exhaust administrative remedies. But his claim that he was confined with EPWs in violation of Article 12, UCMJ fails and his claim that he was placed in irons in violation of Article 55, UCMJ needs more information, so case was sent back to ACCA for further fact finding or a DuBay hearing.

The decision is a gem. It is particularly fun for anybody interested in how CAAF uses legislative history. Appellant was confined in a confinement area known as the “cage” in Tikrit, Iraq, within 15 feet of EPWs. He was in an area separated from the EPWs by concertina wire. Judge Baker’s opinion looked at the exact nature of concertina wire in determining that Appellant was not confined in “immediate association” with EPWs, therefore there was no Article 12 violation.

While looking at the legislative history, Judge Baker drops a few great lines. Such as during World War II there were two million courts-martial.

Regarding Appellant’s claim that he was unnecessarily kept in irons, CAAF decided it just didn’t have enough facts, so it set the case back to ACCA to develop those facts.

CJ Effron dissents on the exhaustion issue. He points out that Appellant didn’t file an Article 138 complaint, didn’t raise the issue in his clemency matters, and it wasn’t raised in his defense counsel’s 1106 matters. The most interesting part of the dissent is CJ Effron’s suggestion, citing Jones v. Bock, 127 S. Ct. 910 (2007), that perhaps the government should bear the burden of showing a failure to exhaust remedies instead of the appellant proving he did exhaust.

https://afls16.jag.af.mil/CG/Court%20of%20Criminal%20Appeals%20Opinions/Fiscal%20Years%202006%20and%202007/20070323%20United%20States%20v.%20Gonzalez%2C%20M.J..pdf

OPINION: On further consideration of Petitioner’s request for extraordinary relief and related matters filed by both parties, it is ordered that the Government shall provide Petitioner with an appropriate expert consultant for purposes of the pending litigation; that the matter is remanded to the United States Navy-Marine Corps Court of Criminal Appeals to consider the continued availability of the sentence to death in light of the following:
The Government stated in this Court that (a) “mental retardation is generally thought to be present if an individual has an IQ [intelligence quotient] of approximately 70 or below” and that “there is a standard of error of measurement, which is approximately 5 points overall,”; and (b) “a full scale Intelligence Quotient (IQ) test” administered prior to Petitioner’s court-martial determined Petitioner’s IQ to be 74. See Atkins v. Virginia, 536 U.S. 304, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002).That the Court of Criminal Appeals shall consider such other issues as may be raised by the parties; and That the stay previously ordered by the Court in “all matters before the court below regarding the Mental Health Evaluation [*2] of Petitioner” shall remain in effect pending further order of this Court.

61 M.J. 63 (CAAF 2005)

I understand that NMCCA decided that death was still available as an option and adopted a 3 part mental retardation test with the burden on the appellant to show he is mentally retarded by a preponderance of the evidence.

NMCCA further found that death could not be imposed until Appellant had a full and fair opportunity to meet the test. NMCCA also apparently recommended a DuBay hearing, but didn’t order one, instead returning the case to CAAF.

Again, I haven’t gotten my hands on the decision, so I might have some of the details wrong. I am sure somebody will track it down shortly. Alas, it was not on Lexis or the NMCCA website.

On a side note, I cannot figure out how to get my computer to give me Google blogger in English, so I am attempting to post following Italian instructions. In case anybody was wondering, I do not know Italian like John Holt.

Jason Grover

Or, of course, they just blew the date. Happens to the best of us.