CAAFlog » CAAF Docket

CAAF’s oral argument calendar was updated today, listing the date and case of the first oral argument of the September 2014 Term:

Tuesday, September 9, 2014
9:30 a.m.:

United States v. Ruben Vargas  No. 14-6009/MC
(Appellee) (Appellant)

Counsel for Appellant:  LtCol Richard A. Viczorek, USMCR
——————————– (supplement)
—————————————– (reply)
Counsel for Appellee:  Maj David N. Roberts, USMC (answer)

Case Summary: Special court-martial prosecution for assault consummated by a battery. Granted issue questions whether the Navy-Marine Corps Court of Criminal Appeals erroneously interpreted Article 62, UCMJ, to allow a Government appeal of the military judge’s denial of a continuance request as well as the military judge’s order resting the Government’s case.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

I discussed the NMCCA’s decision in Vargas in a March post titled: The NMCCA finds that Article 62 authorizes appeals of recesses.

The online version of CAAF’s daily journal is usually a full day behind (i.e., today’s update posted yesterday’s activity), so while I normally post the daily journal entry for CAAF grants, we won’t have that until tomorrow at the earliest.

In United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) (discussed here), CAAF reversed nearly 60 years of military jurisprudence and declared that a specification under Article 134 fails to state an offense if it does not allege a “terminal element.” The following term, in United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012) (CAAFlog case page), the court limited the application of Fosler by finding that an accused can plead guilty to a 134 specification that lacks a terminal element because the protections provided by a military plea inquiry are adequate to avoid material prejudice to a substantial right. But then, in United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012) (CAAFlog case page), the court expanded Fosler (where the appellant objected at trial) to include situations where no objection is made at a contested trial, finding that if the Government does not cure the lack of notice caused by the defective specification during the trial itself then, despite the lack of objection, the defect materially prejudices the accused’s right to notice and the conviction must be set-aside.

I was as surprised as everyone else by Fosler, rather ambivalent about Ballan, and outright hostile to Humphries (writing in The Hazard of Humphries that the way for an accused to get relief under Humphries is to not raise the issue at the time of trial – to sandbag the trial court and then claim lack of notice on appeal).

But last week, on June 5, CAAF did something nonsensical in the post-Ballan world – it reversed a guilty plea where the inquiry merely involved the wrong terminal element:

No. 14-0567/AR. U.S. v. Michael C. EVANS. CCA 20130251. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that Specification 3 of Charge IV charged Appellant with violating clause 1 of Article 134, not clause 2. However, the providence inquiry focused on clause 2 of Article 134, and there was no discussion on the record of clause 1. This was reversible error, where Appellant was unaware of one of the elements of the offense, either explicitly or inferentially. See United States v. Schell, 72 M.J. 339 (C.A.A.F. 2013). Accordingly, it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT’S PLEA OF GUILTY TO BREACH OF RESTRICTION TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES (SPECIFICATION 3 OF CHARGE IV) WITHOUT QUESTIONING APPELLANT REGARDING CLAUSE 1 OF ARTICLE 134, UCMJ.

The decision of the United States Army Court of Criminal Appeals is reversed as to Specification 3 of Charge IV, and the finding of guilty is set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may either dismiss Specification 3 of Charge IV and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected specification and the sentence.

I can’t find the CCA’s opinion on its website (an increasingly common problem – are electrons part of the sequester?).

Notably, in Ballan, where the specification contained no terminal element, CAAF concluded:

There was no prejudice to the substantial rights of Appellant; this case, involving a defective specification and a proper plea inquiry, is distinguishable from a contested case involving a defective specification. In cases like this one, any notice issues or potential for prejudice are cured while there is still ample opportunity either for a change in tactics or for the accused to withdraw from the plea completely — not to mention that the military judge must, sua sponte, enter a not guilty plea to the affected charge and specification where he has found a plea improvident. See R.C.M. 910(h)(1) (allowing an accused to withdraw a plea of guilty); R.C.M. 910(h)(2) (requiring the military judge to enter a plea of not guilty when the accused makes statements inconsistent with a guilty plea).

In a contested case, on the other hand, there is no equivalent, timely cure that would necessarily be present in every properly conducted court-martial. In sum, while it was error in a retroactive sense to accept a plea of guilty to an Article 134, UCMJ, charge and specification, which did not explicitly or by necessary implication contain the terminal element, under the facts of this case, the showing of error alone is insufficient to show prejudice to a substantial right.

71 M.J. 28, __, slip op. at 18-19.

So, if an accused pleads guilty to a 134 specification that totally omits the terminal element, that conviction will be affirmed based upon the notice and protections provided by the guilty plea inquiry. However, if the specification states a terminal element, but the plea inquiry discusses a different terminal element, that conviction will be reversed for lack of notice.

Ludicrous.

Two years ago, in the Army case of United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), CAAF explained that “[w]here a general verdict of guilt is based in part on conduct that is constitutionally protected, the Due Process Clause requires that the conviction be set aside.” Barberi, slip op. at 2-3.

Barberi involved a contested child pornography trial where six photographs taken by the appellant (of his teenage step-daughter, nude) were admitted into evidence. The defense unsuccessfully argued at trial that none of the images were child pornography. But the Army CCA found that four of the six images were legally and factually insufficient as child pornography, and then affirmed the child pornography conviction by relying on the other two images and the rule that a general verdict may be upheld if it has any sufficient basis. But CAAF reversed after concluding that “we cannot know which images formed the basis for the finding of guilt to the possession of child pornography charge.” Barberi, slip op. at 11.

18 months later, the Air Force CCA issued a published decision in United States v. Piolunek, 72 M.J. 830, No. 38099 (A.F.Ct.Crim.App. 2013), rev. granted, __ M.J. __ (C.A.A.A.F. Apr. 1, 2014), cert. for rev. filed, __ M.J. __ (C.A.A.F.  Apr. 18, 2014) (CAAFlog case page), in which it applied a separate test for prejudice atop CAAF’s reasoning in Barberi. As the cite reveals (and our case page discusses), CAAF then granted review of the CCA’s ultimate conclusion (affirming the conviction) and the Air Force JAG cross-certified an issue challenging the CCA’s predicate conclusion (finding certain images insufficient).

A month after CAAF granted review in Piolunek, it granted review in another Air Force case involving essentially the same issue: United States v. Huey, No. 38139 (A.F.Ct.Crim.App. Dec. 4, 2013) (slip op. available here), rev. granted, __ M.J. __ (C.A.A.F. May 12, 2014) (discussed here). And yesterday the Air Force JAG certified essentially the same predicate question:

No. 14-5009/AF.U.S. v. Patrick J. HUEY. CCA38139. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT IMAGES 00395505, 00394392, 00395408, 00395454, 00365481, FROM PROSECUTION EXHIBIT 11; THE THIRD AND FOURTH IMAGES ON PAGE 5, THE SECOND IMAGE ON PAGE 7, THE IMAGE ON PAGE 9, THE IMAGE ON PAGE 12, AND THE IMAGE ON PAGE 14 OF PROSECUTION EXHIBIT 14; IMAGE 00180276 IN THE “NON NCMECCP” FOLDER AND IMAGES ON PAGES 11, 14, 29, 31, 41, AND 42 IN THE WORD DOCUMENT TITLED “PE_THUMBNAILS” OF PROSECUTION EXHIBIT 15 DID NOT CONSTITUTE VISUAL DEPICTIONS OF A MINOR ENGAGED IN SEXUALLY EXPLICIT CONDUCT AS A MATTER OF LAW.

For a recent discussion of cross-certification, see this post about the cross-cert in Piolunek.

And for the ongoing discussion of the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force, see this post.

Pursuant to Article 67, UCMJ, 10 U.S.C. § 867, CAAF’s jurisdiction includes (in part) cases where the court grants review “upon petition of the accused and on good cause shown,” and cases that “the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces for review.” The different standards in these provisions create an inherent difference between an accused’s petition for review and a Government appeal in the form of an order from a JAG. But nothing prevents a JAG from ordering CAAF to review an issue for the benefit of an accused and thereby give the accused standing before the court equal to that available to the Government.

However, the Judge Advocate General of the Air Force recently ordered CAAF to review a sizable  number of cases under circumstances that almost exclusively benefit the Government. I discussed these cases in an April post titled: The appearance of bias in the certification of cases by the Judge Advocate General of the Air Force.

In that post I also discussed ten other Air Force cases that the JAG didn’t certify but that I felt warranted certification because they raised significant legal issues. Unlike the cases that were certified, the ten uncertified cases involved issues that would benefit the accused service members. And all of those cases remain uncertified (though CAAF did grant review in one of them). Analyzing these cases, I concluded that the JAG’s apparent eagerness to compel CAAF review of issues for the benefit of the prosecution, but not for the defense, creates “an appearance of bias [that] is a threat to the entire military justice system.” I also wrote:

Unfortunately, there’s no easy answer to the growing appearance of bias in the Air Force certification process. A rush of anti-prosecution certifications would just invoke cynicism. So too would the failure to certify pro-prosecution issues strongly deserving of further review (such as the AFCCA’s recent opinion reversing the convictions on confrontation grounds in United States v. Katso, __ M.J. __, No. 38005 (A.F.Ct.Crim.App. Apr. 11, 2014) (discussed here) (link to slip op.)).

Now CAAF’s daily journal for Monday reveals that the Air Force JAG is continuing this trend:

No. 14-5008/AF. U.S. v. Joshua KATSO. CCA 38005. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND APPELLEE’S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE MILITARY JUDGE PERMITTED, OVER DEFENSE OBJECTION, THE TESTIMONY OF THE GOVERNMENT’S DNA EXPERT, AND THAT THE ERROR WAS NOT HARMLESS

I still think that Katso is deserving of review by CAAF (after all, my writeup of the CCA’s opinion is more than 2,100 words long), and certification was the only way the court would get the case. But as deserved as this certification is, it is still part of a disturbing (and disappointing) trend.

The Judge Advocate General of the Air Force certified the following issue statement in United States v. Burns, No. 14-5004/AF:

Whether the Air Force Court of Criminal Appeals (AFCCA) abused its discretion and committed a miscarriage of justice by reaching its erroneous factual insufficiency conclusion and by relying upon facts not established in the record in finding Appellant’s conviction not factually sufficient.

When that certification appeared on CAAF’s docket I wrote a post titled: Air Force JAG certifies hair-on-fire issue in Burns (and implies that appellate judicial notice is only objectionable when it benefits an accused). Of the facts of the case I observed:

What could prompt such an emotional issue? Appellee got into an argument, and then he fired a single shot from his pistol into the air near his apartment complex. For this, Appellee was convicted of one specification of willfully and wrongfully discharging a firearm under circumstances such as to endanger human life, in violation of Article 134. He was sentenced to confinement for 35 days, reduction to E-1, and a bad-conduct discharge. On review, the majority of a three-judge panel of the AFCCA determined that:

the Government failed to demonstrate that the appellant’s act of firing a single shot into the air was unsafe to human life in general. The Government’s evidence on this element rested almost entirely upon one witness’s testimony about the act itself along with an aerial photograph depicting that the appellant fired his shot in the midst of a multi-building apartment complex. Under the facts of this case, this is an insufficient basis to conclude that human life was endangered by the appellant’s actions.

United States v. Burns, No. S32084, slip op. at 4 (A.F.Ct.Crim.App. Dec. 18, 2013) (link to slip op.). The court found the conviction factually insufficient but it affirmed a conviction of the lesser-included offense of discharging a firearm through negligence. That offense does not carry with it the possibility of a punitive discharge. So, the CCA affirmed all of the sentence except the bad-conduct discharge.

Is this the miscarriage of justice warranting such a breathless certification to CAAF?

In a short order issued yesterday, CAAF answers my question in the negative, rejects the issue certified by TJAF, and affirms the decision of the AFCCA:

No. 14-5004/AF. U.S. v. Nicholas T. BURNS. CCA S32084. On consideration of the issue certified by the Judge Advocate General of the Air Force, 73 M.J. __ (C.A.A.F. Daily Journal Mar. 13, 2014), Appellee’s motion to supplement the record, Appellant’s motion to supplement the record, and the briefs of the parties, we conclude that the United States Air Force Court of Criminal Appeals did not abuse its discretion in finding that Appellee’s conviction of the greater offense of willful and wrongful discharge of a firearm under circumstances such as to endanger human life was factually insufficient and in affirming a finding of guilt as to the lesser included offense of negligent discharge of a firearm. Accordingly, it is ordered that the motions to supplement the record are granted, the certified issue is answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

Today’s update to CAAF’s daily journal reveals that yesterday, the court didn’t just summarily reject the certification of the Judge Advocate General of the Air Force in Seton (discussed here), it also summarily rejected the certified issue in McIntyre:

No. 14-6005/AF. U.S. v. Jacob R. MCINTYRE. CCA 2013-24. On consideration of the issue certified by the Judge Advocate General of the Air Force, 73 M.J. __ (C.A.A.F. Daily Journal Mar. 18, 2014), Appellee’s motion to supplement the record, and Appellant’s motion to supplement the record, we conclude that the military judge did not abuse his discretion in granting the motion to suppress Appellee’s oral and written statements for lack of corroboration. Accordingly, it is ordered that the motions to supplement the record are granted; the certified issue is answered in the negative; and the decision of the United States Air Force Court of Criminal Appeals is affirmed.*

* Chief Judge Baker would have held oral argument before deciding this case

Phil discussed the AFCCA’s decision that affirmed the military judge’s ruling in this post, and I noted the certification in this post.

On May 8, CAAF denied review in Easterly, and denied the Hutchins writ petition without prejudice.

Easterly involves a decision of the NMCCA finding harmless error in the military judge’s denial of a defense motion for relief from unlawful command influence based on the Heritage Brief (a presentation given numerous times by the Commandant of the Marine Corps). I discussed Easterly in this post, and Phil discussed the case in this post.

Curiously, CAAF’s daily journal entry states (without explanation) that Judge Ryan did not participate in Easterly.

In the long-running Hutchins (CAAFlog news page; CAAFlog case page), Sergeant Hutchins has raised multiple UCI-based objections to the personnel of the court-martial, and then sought a writ of mandamus directly from CAAF. Denying the request, CAAF ruled:

Misc. No. 14-8016/NA.  Lawrence G. HUTCHINS III, Petitioner v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Respondents.  On consideration of the petition for extraordinary relief in the nature of a writ of mandamus and prohibition, it is ordered that said petition is hereby denied without prejudice.

Yesterday, in a one-page order you can read here, CAAF summarily ruled against the Air Force in the certified case of United States v. Seton, No. 14-6008/AF. Seton is one of the cases supporting my finding of the appearance of bias in the certification of cases by the Judge Advocate General of the Air Force.

I discussed the CCA’s opinion in this post from February. The case involved a Government interlocutory appeal of a military judge’s order dismissing the charge with prejudice as a remedy for the Government’s failure to preserve a video recording from a military dormitory’s surveillance system. The AFCCA affirmed the judge’s ruling dismissing the case, finding that the video is of central importance in this case where Appellee is charged with one specification of sexual assault in violation of Article 120 (2012) alleging nonconsensual vaginal intercourse.

On April 2, the Judge Advocate General of the Air Force continued the appeal to CAAF, certifying the following issue:

Whether the military judge abused his discretion by dismissing with prejudice the charge and specification based on alleged Governmental violation of Article 46, UCMJ, R.c.M. 701, and R.C.M. 703.

CAAF rules:

On consideration of the issue certified by the Judge Advocate General of the Air Force, 73 M.J. __ (C.A.A.F. Daily Journal Apr. 2, 2014), and Appellee’s motion to supplement the record, we conclude that the military judge did not abuse his discretion in finding a Rule for Courts-Martial 703 violation and dismissing the Charge and Specification with prejudice. Accordingly, it is, by the Court, this 12th day of May, 2014,

ORDERED:
That the motion to supplement the record is granted;
The certified issue is answered in the negative; and,
The decision of the United States Air Force Court of Criminal Appeals is affirmed.*

A footnote adds: “Chief Judge Baker and Judge Ohlson would have held oral argument before deciding this case.”

I just noticed an update to CAAF’s daily journal (available here), showing that the court granted review of two issues in the Air Force case of United States v. McFadden, No. 37438 (A.F.Ct.Crim.App. Sep. 26, 2013) (discussed here) (link to unpub. op.):

I. WHETHER THE AFCCA ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION BY FAILING TO EXCUSE FOR CAUSE A COURT MEMBER WHO ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING DEFENSE COUNSEL’S REQUEST FOR A MISTRIAL AFTER A COURT MEMBER ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

McFadden is one of the uncertified cases I discuss in my post about apparent bias in Air Force TJAG certifications. I’ve updated the post to reflect the grant.

In other docket news, Marine Sergeant Hutchins (full coverage here) has asked CAAF for a writ of mandamus.

Misc. No. 14-8016/NA.  Lawrence G. HUTCHINS III, Petitioner v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Respondents.  Notice is hereby given that a petition for extraordinary relief in the nature of a writ of mandamus and prohibtion was filed under Rule 27(a) on this date.

Notably, this isn’t docketed as a writ-appeal of a decision of the NMCCA, but is a direct appeal to CAAF. As discussed in this post, Sergeant Hutchins has objected to anyone who is subordinate to the Secretary of the Navy serving as military judge in his case.

CAAF’s docket for Friday shows the following certification:

No. 14-5005/AF. U.S., Appellant v. Lieutenant Colonel Todd E. MCDOWELL, Appellee and Senior Airman Christopher A. DEMARIO, Real Party In Interest. CCA 2013-28. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT DENIED THE UNITED STATES’ PETITION FOR EXTRAORDINARY RELIEF AND FOUND THE MILITARY JUDGE’S RULINGS DID NOT CONSTITUTE A JUDICIAL USURPATION OF POWER AND WERE NOT CHARACTERISTIC OF AN ERRONEOUS PRACTICE WHICH IS LIKELY TO RECUR.

WHETHER THIS HONORABLE COURT SHOULD ORDER THE MILITARY JUDGE TO REVERSE HIS DECISIONS TO ORDER AN ORAL DEPOSITION OF B.B. AND TO RE-OPEN THE ARTICLE 32 PRETRIAL INVESTIGATION.

The military judge granted a Defense motion to depose the alleged victim after the victim did not complete her testimony at the Article 32 pretrial investigation (she walked out after two hours of cross examination, having been interviewed by defense counsel for three hours the day before). The Government sought a writ of mandamus ordering the military judge to reverse himself. The AFCCA denied the Government’s petition in this order.

I discussed the AFCCA’s ruling in this post, where I wrote:

I can’t help but wonder why the Government wants to stop this deposition. What could the Government possibly have to lose? While the defense counsel’s five hours of interview and examination of the alleged victim certainly seems like it would be enough, there’s no indication that the defense was abusing the process just to harass the victim (besides the ethical issues that would raise, I’d suspect the 32 IO would have put a stop to any of that). And the deposition officer (something I’ve been before) will exercise reasonable control over the proceeding.

I’m reminded of something I referenced in my argument preview of United States v. Solomon, No. 13-0025/MC, 72 M.J. 176 (C.A.A.F. 2013) (CAAFlog case page):

In the alcove outside the Attorney General’s Office here in Washington, an inscription that rings the space reads: “The United States wins its point whenever justice is done its citizens in the courts.”

Deputy Attorney General David W. Ogden, Memorandum for Department Prosecutors (January 4, 2010).

So true.

This case is the ninth certification from the Air Force on CAAF’s docket this term (I listed the other eight at the bottom of this post).

It’s beginning to look like the Air Force JAG thinks that justice is done only when the Prosecution gets what it wants.

I discussed the seven instructional error cases on CAAF’s docket this term in this post from last month. With a new grant from last Thursday, the total is now up to eight:

No. 14-0048/AR.  U.S. v. Jason C. WAGNER.  CCA 20111064.  Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE FAILED TO INSTRUCT THE PANEL MEMBERS THAT WRONGFUL SEXUAL CONTACT AND ASSAULT CONSUMMATED BY BATTERY ARE LESSER-INCLUDED OFFENSES OF AGGRAVATED SEXUAL ASSAULT.

No briefs will be filed under Rule 25.

CAAF’s website is back online and the daily journal shows two interesting entries.

First, the Air Force JAG certified another case (this is #5 in the term):

No. 14-6005/AF. U.S. v. Jacob R. MCINTYRE. CCA 2013-24. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, and a supporting brief were filed under Rule 22 this date on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY SUPPRESSING APPELLEE’S WRITTEN AND ORAL STATEMENTS THAT PERTAINED TO HIS VIEWING AND POSSESSING CHILD PORNOGRAPHY ON THE BASIS OF LACK OF CORROBORATION.

Appellee will file an answer under Rule 22(b)(1) on or before March 28, 2014.

We discussed McIntyre in this post. The AFCCA’s opinion is available here.

Second, CAAF denied a Government petition for reconsideration in the Air Force case of United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014) (CAAFlog case page). Wicks involved an interlocutory appeal of a military judge’s pretrial ruling that suppressed the results of a search of a mobile telephone. The search revealed evidence that the accused engaged in improper relationships with trainees while serving as a military training instructor at Joint Base San Antonio-Lackland, Texas. The Government appealed the ruling and the Air Force CCA reversed the trial judge. But CAAF reversed the Air Force CCA and reinstated the military judge’s ruling suppressing the results of the search.

Additionally, CAAF issued decisions in United States v. Danylo, No. 13-0570/AF (CAAFlog case page), and United States v. Kearns, No. 13-0565/AR (CAAFlog case page). The court decides both cases in favor of the Government. I will post analysis of these opinions tomorrow.

It looks like some mental health records of the alleged victim in the Tate case (the Naval Academy midshipman charged with sexual assault) were reviewed by the military judge, the judge prepared a summary of those records that might be disclosed to the Defense, and then the alleged victim sought extraordinary relief regarding those records.

CAAF’s daily journal for Thursday, March 13, shows that the court isn’t going to get involved, yet:

Misc. No. 14-8010/NA. L.C., Midshipman, U.S. Navy, Appellant v. United States, Appellee, Joshua L. Tate, Midshipman, U.S. Navy, Real Party in Interest. CCA 201400044. On consideration of Appellant’s writ-appeal petition, Appellant’s motion to request an emergency order, the motion of the Maryland Crime Victims’ Resource Center, Inc., to participate as an amicus curiae and file an amicus curiae brief, the motion of the United States to substitute itself for the named military judge appellee, the motion of the National Crime Victim Law Institute to participate as an amicus curiae and file an amicus curiae brief, the motion of Protect Our Defenders to participate as an amicus curiae and file an amicus curiae brief, the motion of the United States to attach the military judge’s ruling that is captioned, “In Camera Review YWCA Counseling Records,” and the motion of the United States to attach, under seal, the military judge’s sealing order and summary of mental health documents dated February 19, 2014, it is ordered that Appellant’s motion to request an emergency order is denied, that the motions of the United States to substitute itself for the named military judge appellee, to attach the military judge’s ruling that is captioned, “In Camera Review YWCA Counseling Records,” and to attach, under seal, the military judge’s sealing order and summary of mental health documents dated February 19, 2014 are granted, that the motions of the Maryland Crime Victims’ Resource Center, Inc., the National Crime Victim Law Institute, and Protect Our Defenders to participate as amicus curiae and file amicus curiae briefs are granted, and that upon consideration of all the pleadings filed, said writ-appeal petition is hereby denied without prejudice to any right Appellant may have to challenge the military judge’s disclosure of a summary of certain psychotherapy records to the defense.

Considering that these are “YWCA Counseling Records,” I wonder if the alleged victim has a claim against the provider who disclosed the records to the court-martial.

A number of notable entries appear on CAAF’s daily journal for last Friday:

The court granted and remanded an Army case (that it appears the CCA summarily affirmed) for further development of the record regarding a claim of ineffective assistance of counsel:

No. 14-0137/AR.  U.S. v. Daniella M. HOWARD.  CCA 20120844.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted on the following issue:

WHETHER APPELLANT WAS DENIED HER SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO CONDUCT A PROPER INVESTIGATION AND PRESENT VITAL EVIDENCE TO THE MILITARY JUDGE REGARDING THE DEFENSE OF DURESS AS A RESULT OF A SEXUAL ASSAULT BY A NONCOMMISSIONED OFFICER.

The decision of the United States Army Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry on the granted issue.  The Court of Criminal Appeals will obtain affidavits from the trial defense counsel (military and civilian) that respond to Appellant’s allegation of ineffective assistance of counsel.  Under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2012), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavits and any other relevant matters.  See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).  If the court determines that a fact-finding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review.  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

The court received a certificate of review from the Air Force JAG in Wilson (previously discussed here), definitively establishing it as a companion case to McPherson (last discussed here).

No. 14-5003/AF.  U.S., Appellant v. Jimmy L. WILSON, Appellee.  CCA 37897.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER ARTICLE 12, UCMJ, APPLIES TO THE CIRCUMSTANCE WHERE AN ACCUSED AND/OR CONVICTED MEMBER OF THE ARMED FORCES IS CONFINED IN IMMEDIATE ASSOCIATION WITH FOREIGN NATIONALS IN A STATE OR FEDERAL FACILITY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before March 31, 2014.

The court denied review in Trank. Remember Trank? It’s the Army case with the Article 62 appeal that I discussed last November in a post titled: In the debate over whether an alleged victim should testify at an Article 32 hearing, the Army CCA has impeccable timing. Notably, CAAF granted a stay of proceedings just a week before it denied review (discussed in this post). It’s also worth mentioning that Rule 6 of CAAF’s rules gives the Chief Judge (or a judge performing his duties) the authority to grant a stay.

CAAF also denied review of the rehearing in McMurrin, ending the long saga of Fireman McMurrin who, in 2008, went on a cocaine and heroin binge with a fellow sailor who died at the end of the night after McMurrin left him in the bushes to “sleep it off.” See United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011) (McMurrin II) (link to slip op.). I last discussed the case in this post, where I predicted (wrongly) that CAAF would grant review.

Finally, in this post I noted the NMCCA’s decision the set aside the findings and authorized a rehearing in United States v. Dougherty, No. 201300060 (N-M.Ct-Crim.App. Dec. 31, 2013) (link to slip op.). Considering that result, I was surprised to see this:

No. 14-0436/MC.  U.S. v. Daniel L. DOUGHERTY.  CCA 201300060.  Appellant’s motion to extend time to file the supplement to the petition for grant of review granted to March 19, 2014.

In this January post, I discussed the Government’s petition for reconsideration of the Air Force case of United States v. Knapp, No. 13-5012/AF, 73 M.J. 33 (link to slip op.) (CAAFlog case page). CAAF unanimously agreed with the Air Force CCA that the admission of improper “human lie detector” evidence against Appellant was obvious error, but CAAF split 3-2 to find that the error was prejudicial to Appellant, reverse the decision of the Air Force CCA on this point, and set aside aside the findings of guilty while authorizing a rehearing.

Last week, CAAF denied the Government petition for reconsideration.