Category: CAAF Docket
The Judge Advocate General of the Air Force has certified three issues to CAAF following AFCCA’s holding that it didn’t have jurisdiction to provide extraordinary relief to the complainant in a sexual assault case who sought to reverse Judge Kastenberg’s ruling that she had no right to have her “special victims counsel” address the court during an MRE 412 or MRE 513 hearing:
I. Whether the Air Force Court of Criminal Appeals erred by holding that it lacked jurisdiction to hear A1C LRM’s petitino for a writ of mandamus
II. Whether the military judge erred by denying A1C LRM the opportunity to be heard through counsel thereby denying her due process under the Military Rules of Evidence, the Crime Victims’ Rights Act and the United States Constitution
III. Whether this Honorable Court should issue a writ of mandamus.
Here’s the appellant’s reply brief in United States v. Salyer, No. 12-0186/MC. Salyer will be the second case heard this coming Tuesday morning at CAAF.
Here’s a link to the brief that Code 46 filed at CAAF in United States v. Salyer.
CAAF has announced that it will hear oral argument in two cases on 2 Apri: United States v. Bennitt, 12-0616/AR, which presents a couple of search and seizure issues and a specified legal sufficiency issue, and the closely watched case of United States v. Salyer, No. 13-0186/MC, dealing with prosecutors accessing the military judge’s private information and a prosecution supervisory official contacting the military judge’s reporting senior concerning a motion to disqualify the military judge following a ruling adverse to the government.
We’ve been following the case of United States v. Salyer, No. 13-0186/MC, which involves a UCI issue arising from the military judge’s recusal after government lawyers accessed his personnel record and challenged him for cause due to the age of his wife when they married, as well as the OIC of the law center calling the military judge’s supervisor and discussing the government’s upcoming motion to disqualify with him. Here’s a link to the appellant’s brief, which was filed last week.
On Tuesday, the Judge Advocate General of the Coast Guard certified this issue to CAAF:
WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY APPLYING THE PROVIDENCY REQUIREMENTS OF HARTMAN IN A CASE WHERE THE FACTS ELICITED DURING THE PROVIDENCY INQUIRY REVEALED THAT THE SEXUAL ACTIVITY FELL OUTSIDE OF THE CONSTITUTIONAL PROTECTIONS BOUNDED BY LAWRENCE v. TEXAS BECAUSE IT INVOLVED A SLEEPING VICTIM.
United States v . Whitaker, __ M.J. __, No. 13-5004/CG (C.A.A.F. Feb. 5, 2013). CGCCA’s unpublished decision in the case is available here.
On Wednesday, CAAF granted a cross-petition to consider this issue in Schell, No. 13-5001/AR:
WHETHER THE MILITARY JUDGE’S FAILURE TO DISCUSS WITH CROSS-APPELLANT THAT THE OFFENSE OF ATTEMPTED ENTICEMENT OF A MINOR REQUIRES A SUBSTANTIAL STEP TOWARD THE COMMISSION OF THE UNDERLYING SUBSTANTIVE OFFENSE PROVIDES A SUBSTANTIAL BASIS IN LAW TO QUESTION CROSS-APPELLANT’S PLEA.
United States v. Schell, __ M.J. __, No. 13-5001/AR (C.A.A.F. Feb. 6, 2013).
The Zee Man previously noted the Judge Advocate General of the Army’s certification of Schell here. ACCA’s opinion is published at 71 M.J. 574.
On Monday, CAAF specified an additional issue in Kelly, No. 12-0524:
WHETHER THE EXAMINATION OF THE CONTENTS OF APPELLANT’S COMPUTER WAS AN UNLAWFUL INSPECTION UNDER M.R.E. 313(b).
We previously noted the granting of two issues in Kelly here. ACCA’s opinion in the case is here. Briefs from both parties are due by Valentine’s Day. The case is being orally argued at the University of Arizona’s James E. Rogers College of Law on 26 February.
The Judge Advocate General of the Air Force today certified this issue to CAAF in Humphries:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING APPELLEE’S SENTENCE INAPPROPRIATELY SEVERE UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE.
AFCCA’s latest opinion in the case is available here. [Insert familiar disclosure here.]
I sent an email to CAAF after midnight last night asking for a copy of the supp in United States v. Salyer. The wonderful folks at the Clerk’s office have already sent me a copy, which we’ve posted here.
Here’s the issue presented:
UNDER UNITED STATES V. LEWIS, A CASE IS DISMISSED WITH PREJUDICE WHEN UNLAWFUL COMMAND INFLUENCE RESULTS IN THE RECUSAL OF A MILITARY JUDGE. HERE, THE MILITARY JUDGE RECUSED HIMSELF BECAUSE HE FOUND THAT THE GOVERNMENT’S ACTIONS MADE IT IMPOSSIBLE FOR HIM TO REMAIN ON THE CASE. THE GOVERNMENT COMPLAINED TO HIS SUPERVISOR ABOUT A RULING, ACCESSED HIS SERVICE RECORD WITHOUT PERMISSION AND, WITH THIS INFORMATION, MOVED FOR HIS RECUSAL. SHOULD THIS CASE BE DISMISSED WITH PREJUDICE?
We’ve been following the case of United States v. Salyer, No. NMCCA 201200145 (N-M. Ct. Crim. App. Oct. 23, 2012), in which a military justice officer accessed a military judge’s personnel record in an attempt to obtain documentation to support a causal challenge. The case even played a prominent role in our Christmas Eve entry in our top-10 military justice stories of 2012 list. Unbeknownst to me at the time, Salyer’s appellate defense counsel had already filed a CAAF petition in the case. Monday’s update of the daily journal included a docketing notice for United States v. Salyer, No. 13-0186/MC. I don’t know whether Salyer’s counsel filed the supp along with the petition or moved for additional time to file the supp. If a supp has been filed, we’ll try to obtain and post a copy. If not, we’ll try do so once it’s filed.
CAAF’s Daily Journal for October 24, 2012, has this entry:
No. 11-0019/AF. U.S. v. Shannon L. DOLLAR. CCA S31607. Review granted on the following issue:
WHETHER THE ERRONEOUS ADMISSION OF COVER MEMORANDA AND CERTIFICATIONS BY LABORATORY CERTIFYING OFFICIALS ON TWO DD FORM 2624s WAS HARMLESS BEYOND A REASONABLE DOUBT IN A CASE WHERE THE TESTIFYING EXPERT HAD NO INVOLVEMENT IN THE TESTING OF APPELLANT’S SAMPLES AND QUOTED THE COVER MEMORANDA IN HIS TESTIMONY TO THE MEMBERS.
No briefs will be filed under Rule 25.
Here is Monday’s Daily Journal entry noting the stay in MAJ Nidal Hasan’s case has been granted:
No. 13-8009/AR. Nidal M. HASAN, Appellant v. Gregory GROSS, Colonel, U.S. Army, Military Judge, Appellee. CCA 20120876. On consideration of Appellant’s motion to stay proceedings, it is ordered that said motion is hereby granted pending further order of the Court.
From CAAF’s daily journal for Friday, October 19, 2012:
MISCELLANEOUS DOCKET – FILINGS
Misc. No. 13-8009/AR. Nidal M. HASAN, Appellant v. Gregory GROSS, Colonel, U.S. Army, Military Judge, Appellee. CCA 20120876. Notice is hereby given that a motion to stay proceedings was filed by Appellant on this date.