Opinion Analysis: A trial counsel’s certification doesn’t create interlocutory jurisdiction, in United States v. Jacobsen
CAAF decided the certified Army case of United States v. Jacobsen, 77 M.J. 81, No. 17-0408/AR (CAAFlog case page) (link to slip op.), on Monday, December 11, 2017. Answering only the discrete question presented in the JAG’s certification, a majority of CAAF holds that a trial counsel’s certification does not conclusively establish appellate jurisdiction over an interlocutory prosecution appeal.
Judge Ryan writes for the court, joined by Chief Judge Stucky, Judge Ohlson, and Judge Sparks. Senior Judge Cox dissents.
The case is an interlocutory appeal in an ongoing general court-martial involving an alleged sexual offense. Sergeant First Class (E-7) Jacobsen is the accused, and his defense includes a focus on the alleged victim’s lack of credibility. The prosecution wants to introduce a prior statement of the alleged victim to rehabilitate her credibility, but the military judge prohibited it from doing so. The prosecution then appealed that ruling.
Article 62 authorizes interlocutory appeals under limited circumstances. One of them is when a military judge issues “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B). The prosecution filed such an appeal, and the trial counsel certified “that the evidence excluded is substantial proof of a fact material in the proceeding.” Article 62(a)(2).
But the Army CCA found that it lacked jurisdiction to consider the appeal because, despite the trial counsel’s certification, the CCA concluded that the military judge did not exclude evidence that is substantial proof of a fact material in the proceeding. The Judge Advocate General of the Army then certified a single issue to CAAF:
Whether the trial counsel’s certification that evidence is “substantial proof of a fact material in the proceeding” is conclusive for purposes of establishing appellate jurisdiction under Article 62(a)(1)(b), Uniform Code of Military Justice.
Yesterday’s opinion answers this question with a no. A majority of CAAF adopts the reasoning of the Army CCA that because interlocutory appeals are allowed only when the case “actually meet[s] specified criteria,” slip op. at 4 (quoting CCA opinion), “the ACCA had to satisfy itself that it had appellate jurisdiction before proceeding to review the merits of the appeal,” slip op. at 5. As the lone dissenting voice, however, Senior Judge Cox “see[s] no reason in military practice for an application of Article 62, UCMJ, that second guesses the trial counsel’s certification as to the impact that excluding evidence has upon its ability to successfully try its case.” Diss. op. at 3.