CAAFlog » CAAF Grants

Yesterday CAAF granted review in a Navy case:

No. 16-0214/NA. U.S. v. Michael Z. Pabelona. CCA 201400244. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

PROSECUTORS MUST ACT WITHIN THE BOUNDS OF PROPRIETY. HERE, IN FRONT OF MEMBERS, THE PROSECUTOR EXPRESSED HIS OPINION OF APPELLANT INCLUDING, “I THINK HE’S AN IDIOT,” OPINED ON DEFENSE-FRIENDLY EVIDENCE, CHARACTERIZED APPELLANT’S STATEMENTS AS “RIDICULOUS,” VOUCHED FOR GOVERNMENT-FRIENDLY EVIDENCE, DIAGNOSED APPELLANT AS SCHIZOPHRENIC, ASKED MEMBERS TO DISREGARD DEFENSE ARGUMENTS, AND TOLD MEMBERS THAT APPELLANT “SLEEPS IN A BED OF LIES.” WAS THIS PLAIN ERROR?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The CCA found error but not plain error that some of the comments were not improper and others were not plain error (the defense did not make a timely objection).

My notes indicate that this is the first prosecutorial misconduct case of the term. Government bloopers were our #2 Military Justice Story of 2015.

Update: Links to the briefs are at the end of this post.

In this post I noted CAAF’s docketing of a writ-appeal petition by an apparent alleged victim.

Yesterday CAAF granted review:

No. 16-0398/MC. EV, Appellant v. E.H Robinson, Military Judge, Appellee, and David A. Martinez, Real Party in Interest. Upon consideration of the writ-appeal petition of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, the motion of Protect Our Defenders to file a brief in support of the writ-appeal petition as amicus curiae, and the motion for a stay of trial proceedings, it is ordered:

That the motion of Protect Our Defenders to file a brief in support of the writ-appeal petition as amicus curiae is granted;

That oral argument will be held on May 11, 2016, following the hearing in Howell v. United States, on the following three assigned issues:

I. WHETHER THE NMCCA ERRED BY ERRONEOUSLY DENYING EV’S PETITION FOR A WRIT OF MANDAMUS DESPITE EV’S CLEAR AND INDISPUTABLE RIGHT TO THE ISSUANCE OF A WRIT.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ERRONEOUSLY RULING THE DEFENSE SATISFIED EACH PRONG OF MIL. R. EVID. 513(e)(3) AND BY RULING THAT MIL. R. EVID. 513(d)(5) APPLIED.

III. WHETHER THE MILITARY JUDGE VIOLATED EV’S ARTICLE 6b RIGHTS BY ERRONEOUSLY APPLYING IMPERMISSIBLE EXCEPTIONS AND DENYING EV A RIGHT TO RECEIVE NOTICE AND TO BE HEARD.

That oral argument will also be held on the following specified issue:

IV. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS STATUTORY AUTHORITY TO EXERCISE JURISDICTION OVER DECISIONS OF THE COURTS OF CRIMINAL APPEALS RENDERED PURSUANT TO ARTICLE 6b, UCMJ.

That Appellant will file a brief on the specified issue within 5 days of the date of this Order. Appellee and the Real Party in Interest will file answers within 5 days of the filing of Appellant’s brief. Appellant may file a reply within 2 days of the filing of the said answers;

That the motion for a stay of trial proceedings, incorporated in the writ-appeal petition, is denied because Rule 30(d), Rules of Practice and Procedure, prohibits a motion from being incorporated in any other pleading.

The specified issue immediately bring to mind Judge Ryan’s dissent in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page).

Case Links:
Writ-appeal (Appellant’s) petition
Appellee’s (Government) brief
Real Part in Interest (accused’s) brief
Appellant’s reply brief
Brief of Amicus Curiae (Protect our Defenders)

Yesterday CAAF granted review of an issue raise by the appellant personally:

No. 16-0360/AR. U.S. v. Todd D. Sewell. CCA 20130460. Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals is granted on the following issue personally asserted by the Appellant:

WHETHER THE TRIAL COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT BY MAKING IMPROPER ARGUMENT ON THE FINDINGS.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

This is the third Grostefon issue granted this term; the first was in United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), and the second was in United States v. Nieto, No. 16-0301/AR (discussed here). All three are Army cases.

On Friday CAAF granted review in a Coast Guard case:

No. 16-0336/CG. U.S. v. Omar M. Gomez. CCA 1394. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY PERMITTING TWO COMPLAINING WITNESSES TO TESTIFY ON SENTENCING THAT APPELLANT WAS RESPONSIBLE FOR THEIR PREGNANCY COMPLICATIONS WITH NO EVIDENCE CONNECTING HIS MISCONDUCT TO THE COMPLICATIONS.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here and reveals that:

In the presentencing phase of the court-martial, trial counsel asked M.S. about stress from the trial process and if stress had impacted her pregnancy. In response, M.S. testified that she had been pregnant with twins and that one of the twins “didn’t make it.” Then, addressing the stress from the trial process, she testified that she was worried about the effects of stress on the remaining baby inside her and hoping she could protect her baby from any effects of her stress.

S.W., testifying about impacts of Appellant’s offenses on her life, stated that “it’s hard to see my baby, because he was born premature.” Asked by trial counsel if she believed that stress had something to do with that, she stated she was diagnosed with pre-eclampsia, and that the condition is brought on by stress. Asked if the trial process had caused her stress, she agreed that it had.

Defense counsel did not object to this testimony, and did not have any cross-examination for either witness. In his sentencing argument, trial counsel did not bring up the testimony about the pregnancies of M.S. and S.W. except to briefly argue that Appellant had not apologized for causing stress during M.S.’s pregnancy.

Slip op. at 9. The CCA concluded that “in the absence of objection, we cannot conclude that the admission of this evidence was plain or obvious error.” Slip op. at 10.

In United States v. Davis, 75 M.J. 537 (A. Ct. Crim. App. Nov. 25, 2015) (en banc) (discussed here), the Army CCA held that the failure of the defense to request an instruction on an affirmative defense (mistake of fact as to consent) forfeited the issue absent plain error.

Yesterday CAAF granted review:

No. 16-0306/AR. U.S. v. Joshua C. Davis. CCA 20130996. 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 THE ARMY COURT OF CRIMINAL APPEALS ERRED IN REFUSING TO APPLY DE NOVO REVIEW FOR FAILURE TO INSTRUCT ON AN AFFIRMATIVE DEFENSE RAISED BY THE EVIDENCE, AND INSTEAD FOUND FORFEITURE AND APPLIED A PLAIN ERROR ANALYSIS, CONTRARY TO THIS COURT’S PRECEDENTS IN UNITED STATES v. TAYLOR, 26 M.J. 127 (C.M.A. 1988); UNITED STATES v. DAVIS, 53 M.J. 202 (C.A.A.F. 2000); AND UNITED STATES v. STANLEY, 71 M.J. 60 (C.A.A.F. 2012).

Briefs will be filed under Rule 25.

As the Army CCA’s site is still inaccessible to the public, the CCA’s slip op. is available here.

In United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), CAAF is considering whether the military judge committed plain error when he instructed the panel using a negligence standard for maltreatment of a subordinate in violation of Article 93. The case is one of a handful this term that rely on the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), to argue that the offense does not require a sufficiently culpable mens rea (mental state).

CAAF already decided two such cases: United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page) (applying Elonis to conclude that the appellant must have acted with at least reckless disregard for the true age of the minors to whom he provided alcohol in order to be convicted of violating an order prohibiting such action), and United States v. Rapert, __ M.J. __ (C.A.A.F. Mar. 18, 2016) (CAAFlog case page) (holding that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires adequate proof of an accused’s mens rea). In addition to Caldwell, I’m tracking one other such case (Goffe).

Yesterday the court granted review in a Caldwell trailer:

No. 16-0357/AR. U.S. v. Derick D. Granderson. CCA 20140178. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ERRONEOUSLY USED A NEGLIGENCE STANDARD TO FIND APPELLANT GUILTY OF MALTREATMENT UNDER ARTICLE 93, UCMJ.

No briefs will be filed under Rule 25.

Yesterday CAAF granted review of a Grostefon issue in an Army case:

No. 16-0301/AR. U.S. v. Luis G. Nieto. CCA 20150386.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue personally asserted by Appellant:

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT’S LAPTOP COMPUTER.

Briefs will be filed under Rule 25.

(emphasis added). This is the second Grostefon issue granted this term, the first being in United States v. Caldwell, No. 16-0091/AR (CAAFlog case page).

The Army CCA’s website is still not publicly accessible, so I don’t have a link to the CCA’s opinion (assuming it wasn’t a summary disposition). I will post the opinion if someone with access will email it to zack@caaflog.com

Additionally, yesterday CAAF denied the latest writ-appeal from Sergant Bergdahl:

No. 16-0339/AR. Robert B. Bergdahl v. United States. CCA 20160073.  On consideration of Appellant’s writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on a petition for a writ of prohibition to stay the proceedings and Appellant’s motion for an order requiring Appellee to file and serve a transcript, it is ordered that said writ-appeal is denied and said motion is denied as moot.

This was the fourth trip to Judiciary Square by the Bergdahl defense team. The first, second, and third were all also unsuccessful.

CAAF’s docket for last week has two interesting entries.

First, the court granted review of an Army case:

No. 16-0184/AR. U.S. v. Bradley T. Fontenelle. CCA 20140424. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUSTAIN A CONVICTION FOR THE SPECIFICATION OF THE ADDITIONAL CHARGE IN THAT APPELLANT’S COMMUNICATIONS DO NOT CONSTITUTE “INDECENT LANGUAGE.”

Briefs will be filed under Rule 25.

The Army CCA’s website is still not publicly accessible, so I don’t have a link to the CCA’s opinion (assuming it wasn’t a summary disposition). I will post the opinion if someone with access will email it to zack@caaflog.com

Next CAAF docketed a writ-appeal from what I assume is an alleged victim:

No. 16-0398/MC. EV, Appellant v. E.H. Robinson, Jr., Lieutenant Colonel, U.S. Marine Corps, Military Judge, Appellee and David A. Martinez, Real Party In Interest. 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 was filed under Rule 27(b) on this date.

CAAF recently granted review and summarily reversed the decision of the Army CCA in a case where one of the members was apparently an interloper on the panel:

No. 16-0233/AR. U.S. v. Michael J. Moody. CCA 20121083. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals and the record of trial, it is noted that the record reflects that the court-martial was called to order pursuant to the following orders:

Court-Martial Convening Order Number 1 dated 7 February 2012, superseded by Order Number 3, dated 4 April 2012, as amended by Order Number 11, dated 21 June 2012, as superseded by Order Number 14, dated 12 July 2012, as amended by Order Number 18, dated 20 September 2012, and as amended by Order Number 25, dated 26 November 2012.

Major Krystal G. Sessoms was detailed to the court-martial by Order Number 14 but was removed from the court-martial by Order Number 18. With that set of orders in the record, the members appeared and were sworn. Major Sessoms did not appear. After numerous challenges were granted, the court fell below quorum.

When the case was called again two months later, the trial counsel announced that Order Number 25 had been signed detailing more members to the court-martial. The newly detailed members each appeared and were sworn. However, without having been detailed anew, Major Sessoms also appeared, was sworn, and heard the case.

Accordingly, it is ordered that said petition is hereby granted on the following specified issue:

WHETHER JURISDICTIONAL ERROR OCCURRED WHEN MAJOR SESSOMS WAS DETAILED, LATER REMOVED BY VICING ORDER, BUT ULTIMATELY WAS SWORN AND HEARD THE CASE.

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 a new review and consideration of the specified issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2012).

The term vicing in the specified issue refers to the Army practice of identifying new members for a court-martial in an order that details the new members “vice” the old members. See United States v. Cook, 8 M.J. 434, 436 (C.A.A.F. 1998); United States v. McCall, 26 M.J. 804 (ACMR 1988).

Our #6 Military Justice Story of 2015 was about decisions of the Army CCA, Air Force CCA, and Navy-Marine Corps CCA that allow the Government to use charged sex offenses as evidence of criminal propensity to commit other charged offenses in the same court-martial. Such propensity evidence in sex offense prosecutions is generally allowed under Military Rule of Evidence 413 (for sex cases) and 414 (for child molestation cases).

Last month CAAF granted review in United States v. Hills, No. 15-0767/AR (discussed here), an Army case challenging the use of charged offenses for propensity purposes under Mil. R. Evid. 413.

Last week CAAF granted review in another such case:

No. 16-0277/AR. U.S. v. William P. Moynihan. CCA 20130855. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION “TO USE THE CHARGED SEXUAL OFFENSES AS PROPENSITY EVIDENCE FOR EACH OTHER UNDER MRE 413 AND MRE 414.”

Briefs will be filed under Rule 25.

Notably, the court specified the issue.

Three new – and particularly noteworthy – grants appear on CAAF’s docket.

First, an Army case challenges the use of charged offenses as admissible propensity evidence under Military Rule of Evidence 413. This issue was our #6 Military Justice Story of 2015:

No. 15-0767/AR. U.S. v. Kendell Hills. CCA 20130833. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Hills is available here.

Next, in another Army case, CAAF specified an issue questioning the proper test for prejudice when evidence is admitted in violation of the statutory protections of Article 31(b):

No. 16-0019/AR. U.S. v. Asa M. Evans. CCA 20130647. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHERE THE ARMY COURT OF CRIMINAL APPEALS FOUND EVIDENCE WAS ADMITTED IN VIOLATION OF APPELLANT’S ARTICLE 31(b), UCMJ, RIGHTS, DID THE COURT ERR IN APPLYING THE KERR PREJUDICE TEST AS OPPOSED TO THE BRISBANE HARMLESS BEYOND A REASONABLE DOUBT TEST?

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Evans is available here.

Finally, CAAF ordered oral argument on a specified issue in an Air Force case that was certified to CAAF back in October (discussed here). The certified issue challenges the Air Force CCA’s conclusion that the military judge improperly admitted evidence under Mil. R. Evid. 413. The CCA issued its opinion on June 19, 2015, but the JAG did not certify the case until October 7; seemingly past the 60-day time period set for filing a certification in CAAF’s Rule 22(b)(3). However, the Government repeatedly sought reconsideration by the CCA during that time, ostensibly continuing the CCA’s jurisdiction over the case and extending the beginning of the 60-day time period. CAAF will now review that procedural tactic:

No. 16-0053/AF.U.S. v. Shelby L. Williams.CCA 38454.  On consideration of Appellee’s motion to dismiss the case because the certificate of review was not timely filed, and the government’s opposition thereto, it is ordered that the parties shall present oral argument on the following issue:

WHETHER THE UNITED STATES MAY FILE SUCCESSIVE MOTIONS FOR RECONSIDERATION OF A DECISION OF THE COURT OF CRIMINAL APPEALS, AND THEREBY EFFECTIVELY EXTEND THE 60-DAY FILING DEADLINE FOR A CERTIFICATE OF REVIEW OF SUCH DECISION. SEE CAAF RULES OF PRACTICE AND PROCEDURE 19(b)(3); 22(b)(3); AND 34(a).

The date and time of oral argument will be provided to counsel in a separate order.

CAAF’s narrow reading of the jurisdiction of the CCAs was our #5 Military Justice Story of 2015.

Yesterday CAAF granted review of an implied bias issue affecting a member in a Coast Guard case:

No. 16-0006/CG. U.S. v. Matthew A. Rogers. CCA 1391. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, said petition is granted on the following issue specified by the Court:

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE IMPLIED BIAS CHALLENGE AGAINST CDR K IN LIGHT OF HER VARIOUS PROFESSIONAL AND PERSONAL EXPERIENCE WITH SEXUAL ASSAULT.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s opinion is available here and reveals that:

During voir dire examination, CDR K said she had been assigned to draft a sexual assault response and prevention operational plan as part of her duties on the Coast Guard Atlantic Area staff. The draft plan emphasized preventive measures. At the time of trial, her draft was complete and awaiting the Area Commander’s signature. While performing that duty, she had monitored news stories on sexual assault and read background materials on the subject. She did not deal with response to sexual assault complaints. When asked about the rate of false claims of sexual assault,  she said she had read, probably in multiple sources, that the rate of false claims is about two percent, “and that’s no different than any other crime statistic for false accusations.” When asked if she could disregard those statistics and look at the facts of this case, she responded affirmatively, and added, “I know statistics can be maneuvered by whoever produces those statistics.” She also testified that a co-worker had been falsely accused of sexual misconduct and that she was mindful of the devastating consequences that ensue from false reports.

United States v. Rogers, No. 1391, slip op. at 3-4 (C.G. Ct. Crim. App. Jul. 8, 2015) (citations to record omitted).

In United States v. Gay, __ M.J. __, No. 38525 (A.F. Ct. Crim. App. Jun. 12, 2015) (discussed here), the AFCCA held that the appellant’s confinement in solitary confinement (where he was alone 23 hours per day, and suffered other administrative hardships) in a civilian facility, imposed after he complained of an Article 12 violation, was not cruel and unusual punishment but was deserving of (very limited) relief under the CCA’s Article 66(c) sentence-appropriateness power.

The Judge Advocate General of the Air Force then certified the case to CAAF, challenging the CCA’s authority to grant such relief in the absence of a finding of a violation of the Eighth Amendment or Article 55 (certification discussed here).

CAAF has now specified an additional issue for review, questioning whether the CCA should have remanded for a post-trial fact-finding hearing:

No. 15-0742/AF. U.S. v. Kevin Gay. CCA 38525. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FAILING TO REMAND APPELLANT’S CASE FOR A HEARING PURSUANT TO UNITED STATES v. DUBAY, 17 C.M.A. 147, 37 C.M.R. 411 (1967), TO DETERMINE THE FACTS SURROUNDING APPELLANT’S POST-TRIAL SOLITARY CONFINEMENT. SEE UNITED STATES v. GINN, 47 M.J. 236 (1997).

Briefs will be filed under Rule 25.

In this post I discussed the Army CCA’s decision on a Government interlocutory appeal in United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015), in which a three-judge panel of that court reversed a military judge’s ruling that suppressed DNA evidence in a sexual assault case. Specifically:

The alleged victim, SLN, reported that appellee raped her. [The appellee] denied any and all sexual contact with SLN. Genetic material was recovered from the underwear SLN wore the evening in question. The Kansas City Police Crime Laboratory (KCPCL) conducted deoxyribonucleic acid (DNA) testing on that genetic material. After testing and analysis, the KCPCL reported that [the appellee] could not be excluded as a potential minor contributor to the tested sample. Furthermore, the KCPCL is of the opinion that approximately 1 in 220 unrelated individuals in the general population would be a match to the minor contributor’s profile. [The appellee] was charged with the rape of, and other sexual crimes against, SLN.

Slip op. at 1-2. Additional notable facts include that the genetic material tested was “an exceedingly small quantity,” slip op. at 5, and that “according to KCPCL, the two other males present in SLN’s home on the night in question were both excluded after comparison to the DNA profile.” Slip op. at 2 n.3.

The CCA concluded that some of the judge’s findings of fact (regarding the procedure used by the laboratory) were clearly erroneous and also that his conclusions of law were erroneous.

CAAF has stayed the trial proceedings and will review the CCA’s decision:

No. 16-0026/AR. U.S. v. Antiwan M. Henning. CCA 20150410. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, on appeal under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), Appellant’s motion to stay the trial proceedings, and Appellee’s motion for leave to exceed the word limit, it is ordered that Appellant’s motion to stay the trial proceedings is hereby granted, pending further order of the Court, that Appellee’s motion to exceed the word limit is hereby granted, and that said petition is hereby granted on the following issue:

WHETHER THE ARMY COURT APPLIED THE WRONG STANDARD OF REVIEW TO THIS ARTICLE 62, UCMJ, APPEAL WHEN IT FOUND THE MILITARY JUDGE MADE ERRONEOUS FINDINGS OF FACT AND ERRONEOUS CONCLUSIONS OF LAW.

In accordance with Rule 19(a)(7)(A), Rules of Practice and Procedure, no further pleadings will be filed.

CAAF’s daily journal has this entry from yesterday:

No. 16-0091/AR. U.S. v. Djoulou K. Caldwell. CCA 20140425.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue personally asserted by Appellant:

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE INSTRUCTED THE PANEL USING A NEGLIGENCE STANDARD FOR MALTREATMENT OF A SUBORDINATE IN VIOLATION OF ARTICLE 93.

Briefs will be filed under Rule 25.

(emphasis added). The right of an appellant to personally assert an error was solidified in United States v. Grostefon, 12 M.J. 431, 436-437 (C.M.A. 1982), in which the court held that a detailed appellate defense counsel must inform the military appellate courts of any issues raised by an appellant, even if the counsel believes they are frivolous:

Henceforth, we will require that when the accused specifies error in his request for appellate representation or in some other form, the appellate defense counsel will, at a minimum, invite the attention of the Court of Military Review to those issues and, in its decision, the Court of Military Review will, at a minimum, acknowledge that it has considered those issues enumerated by the accused and its disposition of them. If the Court of Military Review decides that the issues have no merit, appellate defense counsel will so notify the accused and make his recommendations as to whether the accused should petition for further review to this Court and of his recommendations as to submission of the same issues. Unless the accused consents to withdrawal or abandonment of the issues before this Court, appellate defense counsel will, in the petition for review, identify the issues. If the accused wishes to withdraw the issues, or change or modify them, appellate defense counsel will so state in the petition. Of course, this in no way prevents or discourages appellate defense counsel from submitting briefs and arguments on those issues which, in his professional judgment, have arguable merit. However, in no case will the issues submitted by the accused be ignored without evidence of the accused’s concurrence in that decision.

I’m not sure when CAAF last considered an issue raised personally by an appellant at CAAF, however the court has recently considered issues raised personally by an appellant at a CCA, such as in  United States v. Rose, 71 M.J. 138 (C.A.A.F. May 24, 2012) (CAAFlog case page), and United States v. King, 71 M.J. 50 (C.A.A.F. Mar. 13, 2012) (CAAFlog case page).

Notably, in Caldwell, there doesn’t appear to be a decision on the Army CCA’s website (that implies that it was summarily affirmed).