Here’s a link to the audio of yesterday’s NMCCA oral argument in Hutchins.

Who knew the Army Court of Criminal Appeals had a judge shortage?  So says Mississippi Court of Appeals Judge Virginia Carlton, one of the reservists activated to fill the void, see Mississippi Clarion Ledger story here.  Judge Carlton is quoted in the story saying, ”Deployments in support of the global war on terrorism created a temporary staffing shortage on the Army’s intermediate appellate court, and a backlog of cases resulted.”

There’s been some discussion below of the date on which CCA rulings take effect.  CAAF’s case law indicates that a CCA opinion doesn’t take effect until 30 days from when it is issued, unless the Judge Advocate General decides to effectuate it sooner.

In United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997), CAAF emphasized that CCA opinions aren’t self-executing.  Id. at 361.  A CCA “depends on the Judge Advocate General and lower officials to execute its orders.”  Id.  In a case where a CCA’s decision would result in the accused being released from confinement, CAAF ruled, “[i]f the Judge Advocate General immediately decides not to pursue a case any further, there must be immediate notice to the convening authority of the opinion of the Court of Criminal Appeals and immediate direction to release an accused or conduct a hearing under RCM 305 . . .  on pretrial confinement.”  But a Judge Advocate General has up to 30 days to decide “whether to accept the lower court’s opinion or to pursue it further by way of a motion for reconsideration or certification” to CAAF.  Id.  During that 30-day period, “an accused remains in confinement because the opinion below is inchoate. This reflects Article 66(e), which does not require the Judge Advocate General to provide the convening authority with notification and instructions to release the accused or conduct an RCM 305 hearing ‘unless’ there will not be further consideration by other authorities–a formulation which implies, for instance, that the 30 days that Congress gave the Judge Advocate General to decide whether to certify a case is a reasonable period of time to withhold this release instruction.”  Id. at 361-62.  [Note that it wasn't actually Congress that established the 30-day certification period, but rather CAAF through the exercise of its rulemaking authority.]

 CAAF then indicated, however, that even if the Judge Advocate General chooses to certify the case to CAAF, the CCA opinion takes effect 30 days from when it was issued:  “After considering the matter, if the Judge Advocate General decides to certify a case to this Court, an accused’s interest in the favorable decision of the court below (even if inchoate) requires either that the accused be released in accordance with that decision or a hearing on continued confinement be conducted under RCM 305.”  Id. at 362.

The weather in D.C. is the big news in military justice appellateland this week.  OPM has announced that the federal government is closed in the D.C. area on Tuesday.  But the Coast Guard Court has an outreach argument scheduled at Howard University’s law school tomorrow at 1000.  Does anyone know whether that argument will proceed as scheduled?

Today’s oral argument in Blazier, No. 09-0441/AF, concerning application of Melendez-Diaz to military drug testing lab reports, was exceptionally fascinating.  Audio is available here.  Audio in Huntzinger, No. 09-0589/AR, concerning whether servicemembers have any reasonable expectation of privacy at a Forward Operating Base, is available here.

Audio of today’s NMCCA oral argument in Saxman is available here. 

Finally, the Court of Military Commission Review heard oral argument today in two cases arising from military commission convictions:  United States v. Hamdan and United States v. al Bahlul.  Audio of the al Bahlul oral argument is available here.

Thanks to our reader who provided us with a copy of the Saxman briefs.  As we suspected, the case is fascinating.  But don’t take my word for it — see for yourself.  The defense’s brief is here.  The government’s answer is here.  And the defense’s reply brief is here.  It should be a great oral argument.  Can anyone tell us which judges are on Panel 2?

On 26 January, NMCCA will hear oral argument on this issue in United States v. Saxman:

WHETHER THIS COURT CAN CONDUCT AN ARTICLE 66, UCMJ, REVIEW WHERE THE TRIAL COURT DID NOT SPECIFY WHICH VIDEOS FORMED THE BASIS OF APPELLANT’S CONVICTION FOR KNOWING POSSESSION OF CHILD PORNOGRAPHY WHEN THE MEMBERS FOUND THE APPELLANT GUILTY BY EXCEPTIONS AND SUBSTITUTIONS OF POSSESSING ONLY FOUR OF THE CHARGED 22 VIDEOS.

That sounds fascinating.  If anyone has the briefs and wouldn’t mind throwing them over our electronic transom (caaflog@caaflog.com), we’d love to see ‘em.

NMCCA slipped in an oral argument on Friday in United States v. Wood.  Audio is available here.  These are the issues:

A En Banc Navy-Marine Corps Court of Criminal Appeals has held that the requirement in OPNAVINST 5350.4C that a sailor “promptly notify their CO” of certain civilian alcohiol related offenses is unconstitutional.   See United States v. Serianne, No. 200900330, __ M.J. __ (N-M Ct. Crim. App. Nov. 25, 2009).  Update:  Here is the offical NMCCA link. 

OPNAVINST 5350.4C’s relevant provision states

All personnel are responsible for their personal decisions relating to drug and alcohol use and are fully accountable for any substandard performance or illegal acts resulting from such use.  Members arrested for an alcohol-related offense under civil authority, which if punished under the UCMJ would result in a punishment of confinement for 1 year or more, or a punitive discharge or dismissal from the Service (e.g., DUI/DWI), shall promptly notify their CO.  Failure to do so may constitute an offense punishable under Article 92, UCMJ.

The lead opinion, authored by Judge Perlak,  affirms the ruling of the military judge, concluding 

In requiring the disclosure of a servicemember’s arrest for driving under the influence, we hold that OPNAVINST 5350.4C compels an incriminatory testimonial communication for which no exception exists.

Judges Vincent, Mitchell, Booker, Price, Maksym, and Carberry concurred in the lead opinion.  Chief Judge Geiser, concurred in the result in a separate opinion based on vagueness grounds,  writing

I specifically find the requirement that servicemembers report “an alcohol-related offense under civil authority, which if punished under the Uniform Code of Military Justice would result in a punishment of confinement for 1 year or more, or a punitive discharge or dismissal from the service…” to require knowledge of future events that servicemembers cannot possibly possess.  While servicemembers could be expected to know or determine without difficulty the maximum possible punishment for a particular offense, it is unreasonable to require them to divine what “would result” if the case were punished at court-martial.

Judge Beal concurred in the result based on Judge Geiser’s rationale and seems to concur that a prosecution based on a self report would pose constitutional questions, which he suggests are not raised by this case where the member sailor failed to self-report, stating

While I believe the mandates of Chief of Naval Operations Instruction (OPNAVINST) 5350.4C might present a constitutional dilemma if a convening authority chooses to criminally prosecute a servicemember who complies with the instruction, I also believe the instruction serves a legitimate administrative purpose to ensure that information regarding drug or alcohol related offenses is properly brought to the attention of commanders who have a responsibility to ensure appropriate administrative action is taken, e.g. report or reassess the member’s qualifications for promotion or to hold a security clearance.  In other words, it is appropriate to require servicemembers to put themselves on report for administrative purposes.

 In cases where a convening authority might choose to refer charges against an accused that stem from the conduct self-reported in compliance with the order, I believe the proper remedy in certain cases would be to dismiss the charge or charges stemming from the self-reported conduct.  Had the accused self-reported his civilian arrest in compliance with OPNAVINST 5350.4C, and if his self-reporting was the sole basis for the accuser’s preferral of charges, then I believe the Fifth Amendment right against self-incrimination would have barred his prosecution for the underlying misconduct, i.e., in this case the proper remedy would be to dismiss the Article 111 charge, not the Article 92 charge.

Update later when we get through all the opinions in some detail.  H/t to Row.

Here’s a link to the audio of today’s NMCCA argument in United States v. Stevenson.