We’ve been following the back-and-forth in the Gaskins case, concerning how the loss of a defense exhibit and its resulting unavailabililty during Article 66 review should be remedied.  As we noted here, Army DAD filed a petition for extraordinary relief seeking to block the new sentencing hearing that ACCA ordered as a remedy during its most recent review of the case.  And as we noted here, on 31 March, CAAF stayed any rehearing on sentence in the case.  Now today’s Daily Journal update informs us that yesterday CAAF ordered the respondents to show cause no later than 9 May why the requested relief shouldn’t be granted.

On Thursday, CAAF once again issued a stay to prevent execution of a remedy ordered by ACCA in the Gaskins case.  We’ve posted a copy of the stay order here.  We previously noted Gaskins’ request to CAAF to stop execution of ACCA’s remedy here.

NIMJ’s blog reports here that counsel for Gaskins have filed a petition for extraordinary relief at CAAF seeking to halt the remand of his case for a new sentencing hearing due to a lost exhibit that rendered the record of his originally sentencing proceeding non-substantially verbatim.  You can see all of our previous coverage of the Gaskins case here.

I’m back after spending the last two weeks in Africa (more about that later — probably this weekend). 

While I don’t see it on the daily journal, my understanding is that CAAF granted review in United States v. Schuber, No. 11-6002/AF — an Article 62 appeal case — and set it for oral argument on 30 March.  AFCCA’s opinion, which reversed the trial judge’s holding that there was an Article 10 violation in the case, is available here. 

Today CAAF also granted review in United States v. Zarbatany, No. 11-0165/AF, and set a shortened briefing schedule to squeeze the case in for a 21 April oral argument.  Here are the granted issues:

I.   WHETHER THE AFCCA ERRED IN FINDING THAT ILLEGAL CONFINEMENT CREDIT, AWARDED PURSUANT TO ARTICLE 13, UCMJ, CANNOT BE APPLIED TOWARDS A PUNITIVE DISCHARGE.

II.  WHETHER THE AFCCA ERRED BY FAILING TO GIVE MEANINGFUL RELIEF WHERE APPELLANT HAD 445 DAYS OF ILLEGAL PRETRIAL CONFINEMENT CREDIT IN EXCESS OF HIS APPROVED SENTENCE TO CONFINEMENT.

AFCCA’s unpublished decision in the case is available here.

On 11 January, CAAF heard oral argugment in United States v. Humphries, No. 10-5004/AF, a certified issue case in which the government challenged an exercise of AFCCA’s sentence appropriateness power as well as a CCA’s authority to remand a case to a convening authority with an indication that if he approves an unsuspended BCD, the CCA will disapprove it.  Today the Humphries case went away.  This CAAF order remanded the case back to AFCCA because AFCCA’s Humphries opinion expressly “decline[d] to affirm the findings” pending remand to the CA.  But CAAF’s jurisdiction-granting statute provides that it “may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals.”  Beause there were no approved findings, CAAF had no authority to act.  (Of course, it’s also the case that under a plain reading of that same sentence in Article 67(c), CAAF has no authority to act on a portion of a sentence that a CCA set aside as inappropriately severe in the exercise of its unique Article 66(c) powers.  That statutory wording was quite deliberate.  The UCMJ’s legislative history states that the “only action which [the Court of Military Appeals] may take with respect to the sentence is to determine whether or not it is within legal limits.”  H.R. Rep. No. 81-491 at 32 (1949); S. Rep. No. 81-486 at 29 (1949).  Yet CAAF earlier denied a defense motion to summarily affirm on that basis.  United States v. Humphries, 69 M.J. 249 (C.A.A.F. 2010).)

CCA opinions regularly come out with an indication that one or more of the judges on the panel participated in the case before transferring from the court.  CAAF has recently declined to review a  couple of cases seeking to challenge that practice.  But today, CAAF remanded a case to the Air Force Court where the judge identified as the author of AFCCA’s opinion left the court before briefing was complete.

In United States v. Hudson, Misc. Dkt. No. 2010-12, ACM 37249 (A.F. Ct. Crim. App. Aug. 23, 2010), AFCCA issued an opinion both denying the appellant’s Article 66 appeal and denying a petition for new trial.  The opinion, dated 23 August 2010, identified Senior Judge Jackson as its author.  The opinion included this notation:  “JACKSON, Senior Judge participated in this decision prior to his reassignment on 15 July 2010.”  But 15 July was before the defense had even filed its brief in support of its petition for new trial. 

CAAF today summarily reversed.  United States v. Hudson, __ M.J. __, No. 11-0104/AF (C.A.A.F. Feb. 10, 2011).  CAAF observed that “the decision of the court below is not free from ambiguity with respect to the status of the judges on the panel that issued the decision on the petition for new trial.”  Accordingly, it sent the case back for a do-over.

On Friday, CAAF ordered a stay of court-martial proceedings in United States v. Schuber, No. 11-6002/AF.  In Schuber, the trial judge dismissed the case on speedy trial grounds.  The government filed an Article 62 appeal and AFCCA reversed in this unpublished opinion.  United States v. Schuber, Misc. Dkt. No. 2010-14 (A.F. Ct. Crim. App. Dec. 2, 2010).  A1C Schuber petitioned CAAF, which has now halted court-martial proceedings pending further order.  In its order, CAAF observed that the Government’s “answer to the supplement to the petition for grant of review is not due to be filed until on or before February 14, 2011.  Accordingly, until the Court considers the pleadings of the parties, it is ordered that the motion is granted pending further order of the Court.”  United States v. Schuber, __ M.J. ___, No. 11-6002/AF (C.A.A.F. Feb. 4, 2011).

CAAF today vacated NMCCA’s opinion in the extraordinary relief case of Wuterich v. Jones, No. 11-8009.MC, and remanded the case to NMCCA for further consideration.  The order arises from the prosecution of SSgt Frank W. Wuterich, USMC, resulting from actions in the wake of an IED attack in Haditha on 19 November 2005.  The case has already been before the appellate courts twice on Article 62 appeals.

On 28 October 2010, SSgt Wuterich filed a petition for a writ of mandamus essentially seeking reversal of the military judge’s denial of relief on a Hutchins-type motion involving the loss of one of his counsel after the counsel had reached his EAS.  (It’s complicated.  The counsel went off the case upon hitting his EAS, stayed off the case for a while while he joined a firm representing another Marine involved in the Haditha incident, then reformed an attorney-client relationship with SSgt Wuterich which was ultimately severed by the military judge, who concluded that the counsel had an irreconcilable conflict that prevented him from representing SSgt Wuterich.)  On 29 October 2010, NMCCA denied the petition for extraordinary relief without reaching its merits, ruling that “[t]his matter seems to fit squarely in the normal course of review under Article 66, UCMJ, if necessary.”  Wuterich v. Jones, NMCCA NO. 200800183 (N-M. Ct. Crim. App. Oct. 29, 2010) (order).  In another order, NMCCA had denied SSgt Wuterich’s motion to compel production of a verbatim transcript of the relevant motions hearing.

Today’s CAAF order provides:

That the decision of the United States Navy-Marine Corps Court of Criminal Appeals is vacated and the case is remanded to that court to 1) obtain the transcripts of the Article 39(a) sessions held on September 13 and 14, 2010, both sealed and unsealed; 2) determine whether the sealed portion should remain sealed; and 3) determine whether the military judge abused his discretion in determining that good cause existed to sever the attorney-client relationship; and

That the Court of Criminal Appeals shall complete its review and return the case to this Court by January 10, 2011.

Wuterich v. Jones, __ M.J. __, No. 11-8009/MC (C.A.A.F. Dec. 20, 2010) (order).

NMCCA wasted no time issuing an order compelling the government to produce authenticated transcripts no later than 27 December 2010.  Wuterich v. Jones, NMCCA No. 200800183 (N-M. Ct. Crim. App. Dec. 20, 2010) (order).

[Familiar Disclosure:  I'm one of SSgt Wuterich's appellate counsel.]

The writ that CAAF issued on Thursday in Gaskins v. Hoffman, __ M.J. ___, Misc. No. 11-8004/AR (C.A.A.F.  Dec. 9, 2010) (summary disposition), appears to be the first time that CAAF granted actual relief on a petition for extraordinary relief or writ appeal (as opposed to ordering a remand, as in Denedo), since 2006. 

Gaskins was an en banc ACCA decision that found the record to be incomplete due to its failure to include a defense exhibit.  United States v. Gaskins, 69 M.J. 569 (A. Ct. Crim. App. 2010) (en banc).  (The No Man discussed the decision here.)   The majority ordered the case remanded for a DuBay hearing “to determine if an omission is substantial, to determine if reconstruction is possible, and to facilitate any reconstruction.”  Controversially, the majority stated, “Defense counsel should provide input in such a reconstruction.”  Judge Ham the Great dissented, arguing that a remand to try to reconstruct the exhibit would be a waste of time.  She also objected to expecting the defense to participate in the missing exhibit’s reconstruction.  And she accused the majority of launching an “appellate ‘rescue mission.’”  Judge Ham the Great wrote an extensive analysis of the omitted exhibit, its significance, and the law governing substantially verbatim transcripts.  She concluded that the appropriate remedy was to disapprove the adjudged and approved DD and knock the confinement down from 12 years to 6 months.  Judge Gifford joined in her dissent.  Chief Judge Tozzi also dissented, but wrote separately to disassociate himself from Judge Ham the Great’s “appellate rescue mission” characterization.  Judge Sims joined Chief Judge Tozzi.

On Thursday, CAAF put a stop to the appellate rescue mission, precluding the DuBay hearing from proceeding.  The case will be returned to ACCA to determine the appropriate outcome.  Judge Ham the Great will no longer be there. ACCA will now have to decide without her further input whether the omission was substantial.  If so, it appears that ACCA will be left with no choice but to disapprove the DD and knock confinement down from 12 years to 6 months.

From Thursday’s daily journal:

Misc. No. 11-8004/AR.  Daniel GASKINS, Petitioner v. Colonel John B. Hoffman, Colonel David L. Conn, Colonel Mark L. Johnson, Colonel Alan L. Cook, Lieutenant Colonel Eugene E. Baime, Respondents.  On further consideration of the petition for extraordinary relief in the nature of a writ of prohibition, and Respondents’ show cause response, we conclude that ordering a factfinding hearing pursuant to United States v. DuBay, 17 C.M.A. 146, 37 C.M.R. 411 (1967), to reconstruct Defense Exhibit A is inappropriate under the facts of this case.  Accordingly, it is ordered that the petition for extraordinary relief to prohibit the United States Army Court of Criminal Appeals from ordering a DuBay hearing is granted.  The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for further consideration of its other options in light of this action.

 More later.

CAAF seems poised to decide whether an Article 62 appeal is timely filed where the prosecution lets the 72-hour window for a government appeal lapse, then seeks reconsideration from the military judge, and then notices a prosecution appeal.

In United States v. Daly, the Coast Guard Court provides the following procedural synopsis:

On 5 March 2010, the military judge dismissed the single charge under Article 134, UCMJ, and its four specifications. The Government requested reconsideration on17 March 2010, which the military judge summarily denied on 26 March 2010. The Government gave notice of appeal on 29 March 2010. On 17 May 2010, the Government filed with this Court the record of trial, which had been authenticated on 2 May 2010. The Government filed its brief on 7 June 2010.

United States v. Daly, 69 M.J. 549, 549 (C.G. Ct. Crim. App. 2010).

The Coast Guard Court proceeded to reach the merits of the government’s appeal and, as we discussed here, denied it.  But upon certification from the Judge Advocate General of the Coast Guard, CAAF’s reaction was, Not so fast.  CAAF questions whether the Coast Guard Court even had jurisdiction to hear the prosecution appeal.  On Thursday, CAAF ordered “that [the government] show cause on or before December 3, 2010, why [the government's] appeal should not be dismissed for lack of jurisdiction as untimely filed in view of the date trial counsel provided written notice of appeal.  See Article 62(a) (2), UCMJ.  [The defense] may file a reply to [the government's] response no later than December 17, 2010.”  United States v. Daly, __ M.J. __, No. 10-6010/CG (C.A.A.F. Nov. 18, 2010).”

In United States v. Santiago, 56 M.J. 610 (N-M. Ct. Crim. App. 2001), NMCCA held that where the government doesn’t seek reconsideration from a military judge until after more than 72 hours had passed, the military judge’s ruling on that reconsideration ruling doesn’t reset the 72-hour clock for noticing a prosecution appeal.  The Judge Advocate General of the Navy didn’t certify Santiago to CAAF.  Daly will likely settle the question for all of the services.

On Tuesday, CAAF remanded United States v. Rose, No. 09-5003/AF, to the Air Force Court, resulting in the cancellation of next month’s scheduled oral argument in the case.  CAAF’s order explains:

Upon further consideration of the certified issue (69 M.J. 198), we note that because of an ambiguity in this Court’s order of October 28, 2009 (68 M.J. 236), where we set aside the decision of the United States Air Force Court of Criminal Appeals, but ordered a new review of only Issue II, the Court of Criminal Appeals, in its subsequent decision of June 11, 2010, acted on the findings with respect to Specifications 1, 2, and 3 of Charge V, but not on the remaining findings and the sentence.  This has resulted in having a case before us for review that does not have a complete decision on all findings and a sentence by a Court of Criminal Appeals as required by Article 67(c), Uniform Code of Military Justice, 10 U.S.C. § 867(c) (2006).  Accordingly, it is, this 9th day of November, 2010,

ORDERED:

That the case is returned to the Judge Advocate General of the Air Force for remand to the lower court to complete its review under Article 66(c), UCMJ, as to the remaining findings and the sentence; and

That the hearing notice issued on September 28, 2010, is hereby rescinded.

[insert familiar disclosure here]

Lewis and Clark.

The Judge Advocate General of the Navy has certified this issue to CAAF in United States v. McMurrin:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY SETTING ASIDE APPELLANT’S CONVICTION FOR NEGLIGENT HOMICIDE AS AN ERSTWHILE LESSER INCLUDED OFFENSE OF INVOLUNTARY MANSLAUGHTER ON THE GROUNDS OF CONSTITUTIONALLY INSUFFICIENT NOTICE WITHOUT TESTING FOR PREJUDICE PER FOOTNOTE 11 OF UNITED STATES v. JONES.

NMCCA’s decision in the case is published at 69 M.J. 591.

We recently noted that CAAF denied the last 111 petitions for extraordinary relief and writ appeals on which it ruled.  Since then, CAAF has granted two motions to stay and issued show cause orders arising from two petitions for extraordinary relief.  We’ve previously discussed Code 46′s petition for extraordinary relief arising from the Parker capital appeal.  See United States v. Navy-Marine Corps Court of Criminal Appeals, __ M.J. ___, No. 11-8005/MC (C.A.A.F. Oct. 8, 2010).  Last Wednesday, CAAF issued another stay and show cause order, this time in response to Army DAD’s petition for extraordinary relief in Gaskins v. Hoffman, No. 11-8004/AR.  The petition for extraordinary relief grows out of a divided en banc ACCA decision remanding a case with a missing sentencing exhibit to see if the missing exhibit can essentially be recreated.  United States v. Gaskins, 69 M.J. 569 (A. Ct. Crim. App. 2010) (en banc).  The No Man discussed the case, with an emphasis on Judge Ham the Great’s dissent, here.

Army GAD’s brief in response to the show cause order is due at CAAF NLT 27 October.