I’ll try to crunch some numbers this weekend, but my sense is that CAAF has granted review of a greater number of cases than at this point last year.  Here’s the issue that CAAF granted today:  “WHETHER THE SENTENCE MUST BE SET ASIDE BECAUSE THE MILITARY JUDGE DETERMINED THE SENTENCE BASED ON THE INCORRECT MAXIMUM PUNISHMENT.”  United States v. Beaty, __ M.J. ___, No.  10-0494/AF (C.A.A.F. July 14, 2010).  AFCCA’s unpublished decision in the case is available here.

The issue concerns whether importing a federal statute’s maximum punishment for a child pornography offense is appropriate where the accused is convicted under Article 134(1) or (2), where the government need not establish that an actual child is depicted.

Beaty continues CAAF’s recent rocket petition docket trend.  The petition was filed on 24 May and has now been granted less than two months later.

CAAF today granted review of this interesting issue from an Army case:

WHETHER THE PRETRIAL AGREEMENT CONTAINED A PROHIBITED AND UNENFORCEABLE PROVISION REQUIRING APPELLANT TO “OFFER TO REQUEST A BAD[-]CONDUCT DISCHARGE DURING THE SENTENCING PHASE” THEREBY VIOLATING RULE FOR COURTS-MARTIAL 705(c)(1)(B) AND PUBLIC POLICY.

United States v. Soto, __ M.J. ___, No. 10-0397/AR (C.A.A.F. July 13, 2010).  ACCA affirmed in a two-sentence per curiam opinion dated 17 February 2010, accompanied by a “Notice of Court-Martial Order Correction.”  (ACCA’s rulings don’t appear to be available online, so I’ve posted them here.)

CAAF granted review today in United States v. Savala, No. 10-0317/NA, on this issue:  ”WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE DENIAL OF APPELLANT’S RIGHT TO CROSS-EXAMINE HIS ACCUSER WAS HARMLESS BEYOND A REASONABLE DOUBT.”

NMCCA’s unpublished decision in the case is available here.  United States v. Savala, No. NMCCA 200800818 (N-M. Ct. Crim. App. Jan. 28, 2010).

CAAF yesterday granted review of this issue:  ”WHETHER THE ARMY COURT ERRED WHEN IT RULED THAT APPELLANT’S ADMINISTRATIVE DISCHARGE WAS VOIDABLE AND PROPERLY REVOKED AND DID NOT REMIT THE ADJUDGED DISMISSAL.”  United States v. Watson, __ M.J. ___, No. 10-0468/AR (C.A.A.F. June 22, 2010).

ACCA’s to-be-published decision in the case is available here.

Watson continues CAAF’s recent trend of moving through its petition docket with remarkable speed.  The petition in Watson was filed on 12 May.

No. 10-0337/AR.  U.S. v. David ANTAR.  CCA 20080836.  Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT’S PLEA OF GUILTY AND NOT REOPENING THE PROVIDENCE INQUIRY WITHOUT QUESTIONING BOTH APPELLANT AND HIS TRIAL DEFENSE COUNSEL REGARDING APPELLANT’S BIPOLAR DISORDER, HIS EXTENSIVE HISTORY OF PSYCHIATRIC DISORDERS, AND POSSIBLE MENTAL RESPONSIBILITY DEFENSE.

The decision of the 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 reconsideration of the aforementioned issue in light of United States v. Harris, 61 M.J. 391 (C.A.A.F. 2005).[See also ORDERS GRANTING PETITION FOR REVIEW this date.]

CAAF today granted review of these four issues in United States v. Pope, No. 10-0447/AF:

I.   WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ADMITTING A GREEN DETOXIFICATION DRINK UNDER THE DOCTRINE OF SIMILAR PHYSICAL EVIDENCE.

II.  WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO GIVE A LIMITING INSTRUCTION THAT AN EXHIBIT WAS BEING ENTERED INTO EVIDENCE FOR ILLUSTRATIVE PURPOSES ONLY.

III. WHETHER IT WAS PLAIN ERROR FOR THE MILITARY JUDGE TO ALLOW TRIAL COUNSEL TO ELICIT TESTIMONY ON APPELLANT’S RIGHT TO REMAIN SILENT AND TO ALLOW TRIAL COUNSEL TO COMMENT ON THIS DURING HIS FINDINGS ARGUMENT.

IV.  WHETHER THE CONTESTED FINDINGS AND SENTENCE IN THE PRESENT CASE SHOULD BE SET ASIDE UNDER THE CUMULATIVE ERROR DOCTRINE.

AFCCA’s unpublished decision in the case is available here.  United States v. Pope, No. S31578 (A.F. Ct. Crim. App. March 8, 2010).

I find it quite impressive that CAAF has already granted review of a case decided on 8 March.  A1C Pope’s petition was filed on 4 May.

CAAF granted review today in United States v. Skrede, No. 10-6002/AF, on these two issues:

I.  Whether the military judge abused her discretion by refusing to admit drug testing reports into evidence over a defense confrontation clause objection where: (1) the reports contained hanwritten results reflecting drug use and certifications that “the laboratory results indicated on this form were correctly determined by proper laboratory procedures, and they are correctly annotated”; (2) the government did not produce in court the declarants whose statements are included in the drug testing reports; and (3) the defense had had no previous opportunity to confront the declarants.

II.  Whether the military judge abused her discretion by refusing to admit a drug testing report into evidence over a defense confrontation clause objection where:  (1) the sample that was the subject of the report was obtained at law enforcement behest; (2) the government did not produce in court the declarants whose statements are included in the drug testing report; and (3) the defense had had no previous opportunity to confront the declarants.

As I was taught today, because Skrede is a review of an Article 62 appeal, CAAF’s rules provide that no briefs will be filed.  AFCCA’s unpublished decision in the case is available here.  (CAAF also summarily reversed AFCCA’s Article 62 appeal decision in Anderson today, relying on United States v. Bradford, 68 M.J. 371 (C.A.A.F. 2010).)

[Disclosure:  I'm one of the appellate defense counsel in all of the cases mentioned above, except for Melendez-Diaz.]

CAAF today granted review of this issue:

WHETHER THE APPELLANT MUST SHOW PREJUDICE TO OBTAIN RELIEF WHERE THE CONVENING AUTHORITY RECEIVED ADVICE ON CLEMENCY FROM A PERSON DISQUALIFIED FROM DOING SO BY ARTICLE 6, UCMJ, AND, IF SO, WHETHER THERE WAS PREJUDICE IN THIS CASE.

United States v. Stefan, __ M.J. __, No. 10-0349/AR (C.A.A.F. May 25, 2010).

Stefan was submitted to ACCA without assignment of error and the majority affirmed in a summary disposition, available here.  United States v. Stefan, No. ARMY 20081097 (A. Ct. Crim. App. Jan. 29, 2010).  But Judge Ham the Great wrote a compelling and elegant nine-page dissent concluding that the SJA who prepared the addendum SJAR was disqualified and that the case satisfied the minimum prejudice hurdle required in a post-trial error context.  The essence of her dissent is captured in this excerpt:

MAJ Wright wore numerous hats throughout this case.  Appearing first in the record of trial on 9 October 2008, as “Chief, Military Justice,” MAJ Wright signed the referral of both the charges and additional charges.  Next, MAJ Wright appeared on 14 October 2008, as “Trial Counsel,” and served the referred charges and additional charges on appellant.  Third, on 6 May 2009, MAJ Wright, acting again as “Chief, Military Justice,” granted trial defense counsel’s request for an extension of time to submit post-trial matters.  On 2 June 2009, MAJ Wright signed the promulgating order and the Chronology Sheet, DD Form 490 as “Acting Staff Judge Advocate.”  Again on 2 June 2009, MAJ Wright signed the Court-Martial Data Sheet, DD Form 494, as “Trial Counsel,” “Convening Authority or His/Her Representative,” and “Staff Judge Advocate of General Court-Martial Convening Authority or Reviewing Judge Advocate.” 

Most importantly, on 2 June 2009, MAJ Wright served as the acting SJA in this case, and signed the addendum to the Staff Judge Advocate’s Recommendation (SJAR), wherein MAJ Wright opined that she had “considered [the defense post-trial submissions] and in [her] opinion, clemency is not warranted.”  I believe MAJ Wright wore too many hats in this case, and was disqualified from rendering advice to the convening authority.

Id., slip op. at 2 (footnotes omitted). 

The precise issue granted, which CAAF reformulated from the issue presented in the supp, appears to assume disqualification and focus on prejudice.  Here’s how Judge Ham the Great addressed the prejudice question:

I would also find appellant has met the low standard for demonstrating prejudice in the post-trial context.  United States v. Wheelus, 49 M.J. 283, 289 (C.A.A.F. 1998).  See also Taylor, 60 M.J. at 195.  Appellant’s clemency submission focused on attempting to secure approval of a bad-conduct discharge, rather than the adjudged more severe dishonorable discharge.  In fact, trial defense counsel’s post-trial submission states that appellant forbade him from requesting that the convening authority grant clemency by reducing appellant’s confinement.  In light of the highly discretionary nature of the convening authority’s clemency decision, I cannot conclude that a disqualified official’s participation is harmless.  Id.  (“By definition, assessments of prejudice during the clemency process are inherently speculative.  Prejudice, in a case involving clemency, can only address possibilities in the context of an inherently discretionary act.”) (citation omitted).  This case demands at least a new addendum and action by an officer “not affiliated with the prosecution who can consider this case in an impartial manner.”  Edwards, 45 M.J. at 117 (citations omitted).  “[R]egardless of the new action’s outcome, the military justice system’s integrity will be protected from a disqualified individual influencing the outcome of [a]ppellant’s post-trial review.”  Taylor, 60 M.J. at 196.

Id., slip op. at 10.

Two of the most contentious areas in current military appellate practice are challenges to the new Article 120 and application of Melendez-Diaz to urinalysis results.  CAAF today granted review of cases raising each of these issues, plus another in which it remanded for a DuBay hearing.

In United States v. Prather, No. 10-0345/AF, the granted issue is:

WHETHER THE ELIMINATION OF THE ELEMENT OF LACK OF CONSENT COMBINED WITH THE SHIFTING OF THE BURDEN TO PROVE CONSENT, BY A PREPONDERANCE OF THE EVIDENCE, TO THE ACCUSED IN ORDER TO RAISE AN AFFIRMATIVE DEFENSE TO AGGRAVATED SEXUAL ASSAULT UNDER ARTICLE 120, UCMJ, WHERE APPELLANT ALLEGEDLY ENGAGED IN SEXUAL INTERCOURSE WITH A PERSON WHO WAS SUBSTANTIALLY INCAPACITATED, IS A VIOLATION OF APPELLANT’S RIGHT TO DUE PROCESS UNDER THE 5TH AMENDMENT OF THE U.S. CONSTITUTION.

AFCCA’s unpublished decision in the case is available here.  The granted issue is similar to the issue that CAAF granted in the funky cold Medina case, No. 10-0262/AF, on 30 March, which we noted here.  CAAF ordered that briefs be filed in Prather.

CAAF today also granted review of this Melendez-Diaz issue:

WHETHER, IN LIGHT OF MELENDEZ-DIAZ v. MASSACHUSETTS, ___ U.S. ___, 129 S.CT. 2527 (2009), THE LOWER COURT ERRED WHEN IT HELD THAT THE ADMISSION OF THE NAVY DRUG SCREENING LABORATORY’S URINALYSIS DOCUMENTS DID NOT VIOLATE APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

United States v. Robinson, No. 10-0319/MC.  But CAAF ordered that no briefs be filed in Robinson.  Of course, CAAF had already invited all of the appellate divisions to file briefs concerning Melendez-Diaz in the ongoing Blazier case.  NMCCA’s unpublished decision in Robinson is available here.

Finally, in United States v. Long, No. 10-0265/AF, CAAF granted review of two issues today:

I.  Whether the Air Force Court of Criminal Appeals erred in failing to remand this case for a DuBay hearing.

II.  Whether Appellant was denied due process because assurances of Air Force officials provided him with de facto immunity from prosecution.

CAAF set aside the Air Force Court’s decision and remanded the case for a DuBay hearing, followed by another review by AFCCA.  The Air Force Court’s unpublished decision in the case is available here.

CAAF granted review in two Air Force cases today.  The granted issue in United States v. Savard, No. 10-0334/AF, is:

WHETHER THE MILITARY JUDGE ERRED BY DENYING TWO WRITTEN DEFENSE MOTIONS WITHOUT HOLDING DEFENSE-REQUESTED ARTICLE 39(a) SESSIONS DESPITE RCM 904(h), WHICH PROVIDES THAT “UPON REQUEST, EITHER PARTY IS ENTITLED TO AN ARTICLE 39(a) SESSION TO PRESENT ORAL ARGUMENT OR HAVE AN EVIDENTIARY HEARING CONCERNING THE DISPOSITION OF WRITTEN MOTIONS.”

The Air Force Court’s unpublished Savard opinion is available here.

The granted issue in United States v. Flores, No. 10-0332/AF, is:  “WHETHER TRIAL COUNSEL IMPROPERLY COMMENTED ON APPELLANT’S CONSTITUTIONAL RIGHT TO REMAIN SILENT THUS DEPRIVING APPELLANT OF A FAIR TRIAL.”  The Air Force Court’s opinion is designated as published, but I can’t find it in WESTLAW.  It’s available here.