I was saddened to see in ACCA’s McGinnis opinion that ”Judge HAM took final action in this case prior to her permanent change of duty station.”  Fair winds and following seas to Judge Ham the Great!

Here’s a link to an interesting unpublished NMCCA opnion setting aside an Article 120 conviction because the military judge failed to sua sponte instruct on the affirmative defense of consent.  United States v. Jones, No. NMCCA 200900679 (N-M. Ct. Crim. App. Aug. 17, 2010) (per curiam).

ACCA’s new Smith opinion concerns the authority of the Acting Commander of Fort Lewis to convene general courts-martial.  United States v. Smith, No. ARMY 20090758 (A. Ct. Crim. App. Aug. 5, 2010).

I assume Smith will be published, but I’m no longer sure since ACCA no longer publishes all of its designated “Opinions of the Court.”  See, e.g., Trigueros, Hudgins, and Watson.

ACCA explains that Army installation commanders aren’t statutorily authorized to convene general courts-martial.  So the Acting Commander of Fort Lewis could exercise such authority only if the Secretary of the Army had so empowered him.  That required ACCA to review the Secretarial General Orders granting court-martial convening authority.

In 1981, the Secretary of the Army issued General Order No. 10, granting general court-martial convening authority to, among others, the Commander of Fort Lewis.   Later that same year, General Order No. 27 designated the “Commander, I Corps & Fort Lewis” as a general court-martial convening authority.  At the time of Smith’s court-martial, that formerly combined command had split in two, with the Comamnder of I Corps deploying, leaving behind an Acting Commander of Fort Lewis.

ACCA held that the Acting Commander had court-martial convening authority pursuant to General Order No. 10, which the court held was not rescinded by General Order No. 27 designating the combined command as a general court-martial convening authority.  ACCA relied on United States v. Gates, 21 M.J. 722 (A.C.M.R. 1985), which had similarly upheld the co-existence of orders providing general court-martial convening authority.

Judge Gifford wrote for a unanimous panel.

Courtesy of Main Justice (also covered at Army Times):

Patrick Reinert, Assistant U.S. Attorney for Iowa’s Northern District, is nominated to serve as the chief judge on the Army Court of Criminal Appeals, which oversees the appeals of criminal court martial convictions by Army personnel. The U.S. Attorney’s office announced the appointment Wednesday. In civilian life, Reinert became an Assistant U.S. Attorney in 1990 and currently heads the office’s Organized Crime and Drug Enforcement Task Force.

But the Cedar Rapids-based prosecutor also serves as commander of the 150th Judge Advocate General Detachment in Alexandria, Va. — an Army Reserve Unit made up of military judges who handle courts-martial worldwide. He has conducted more than 90 courts-martial in deployments to Germany, Italy, Kuwait, Iraq and Afghanistan, according to the AP.

The Coast Guard Court has issued this published opinion, which sets aside a CA’s action due to a deficient SJAR.  United States v. Sanchez, __ M.J. ___, No. 1320 (C.G. Ct. Crim. App. July 29, 2010).  Chief Judge McClelland wrote for a unanimous panel.

The SJAR noted the findings and sentence and the absence of previous convictions, referenced a previous NJP, and listed four negative administrative remarks.  The SJAR failed to note the accused’s length of service, awards, decorations, positive administrative remarks, or evaluations.  The TDC offered no objections or comments.

The Coast Guard Court held that the omission of the accused’s awards and decorations was error and that the error was plain and obvious, since R.C.M. 1106 requires that they be noted in an SJAR.  The court further concluded that where the omitted information included two Coast Guard Achievement medals, two Good Conduct Medals, and a letter of commendation, the omission was prejudicial, thus satisfying all the prongs of a plain error analysis.

ACCA’s web site lists three kinds of opinions:  (1) Opinions of the Court; (2) Memorandum Opinions; and (3) Summary Dispositions.  I had always thought that “Opinions of the Court” meant published opinions. But I see that the Trigueros, Hudgins, and Watson “Opinions of the Court”–all issued in March–aren’t on WESTLAW while ACCA’s Fordyce and Eslinger opinions issued in May have already been published in West’s Military Justice Reporter.  Army Lurker, are you out there?  Can you please explain this one to me?  How do I know which ACCA “Opinions of the Court” are going to be published and which aren’t?

Audio of yesterday’s oral argument before the Navy-Marine Corps Court in United States v. Sagona is available here.  The issue being argued was:

WHETHER THE GOVERNMENT OR THE APPELLANT BEARS THE BURDEN OF PRODUCING THE AGREEMENT CENTRAL TO THE APPELLANT’S DE FACTO IMMUNITY CLAIM, AND, IF THE GOVERNMENT BEARS THIS BURDEN, WHETHER THE LOSS OF THIS DOCUMENT CONSTITUTES A DUE-PROCESS VIOLATION.

Audio of last Monday’s argument before NMCCA in United States v. Foisy is available here.  The argued issue is: “WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DID NOT ALLOW THE DEFENSE TO INTRODUCE INTO EVIDENCE THE INITIAL NCIS STATEMENT MADE BY PFC FOISY AFTER THE GOVERNMENT HAD ALREADY ADMITTED PFC FOISY’S SUPPLEMENTAL NCIS STATEMENT.”

Audio of today’s NMCCA oral argument in United States v. Phillips is available here.  (BZ to both NMCCA and CAAF for providing same-day access to the oral argument audio.)

When it rains, it pours.  (Literally, as I can attest from just walking the dogs.)

The Coast Guard Court has issued this published opinion in United States v. Hester, __ M.J. __, No. 1303 (C.G. Ct. Crim. App. March 30, 2010).  More later tonight (I hope).