Argument Preview: Determining the scope of an appellant’s right to release from confinement after a favorable decision by a CCA, in United States v. Katso
CAAF will hear oral argument in the certified Air Force case of United States v. Katso, No.17-0326/AF (CAAFlog case page), on Tuesday, December 5, 2017, at 9:30 a.m. This is the second certification to CAAF in this case. Previously, in United States v. Katso, 74 M.J. 273 (C.A.A.F. 2015) (CAAFlog case page), CAAF held that expert testimony did not violate Katso’s constitutional right to confront the witnesses against him. Now, CAAF will review whether the Air Force CCA erred in giving Katso 365 days of credit against the adjudged sentence to confinement as a remedy for the Air Force failing to conduct a confinement review hearing after the CCA issued its original decision in the case (a decision that was reversed in CAAF’s prior review).
I outlined the procedural history of this case and the CCA’s decision granting the credit in this post.
The Judge Advocate General of the Air Force certified three issues:
I. Whether the Air Force Court of Criminal Appeals erred when it held that United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997) required the government to hold a continued confinement hearing within 7 days of the Judge Advocate General’s decision on certification.
II. Whether the Air Force Court of Criminal Appeals erred when it found that government’s failure to hold a continued confinement hearing within 7 days of the Judge Advocate General’s decision on certification automatically resulted in a day-for-day sentencing credit.
III. Whether Appellee was prejudiced when the government failed to hold a continued confinement hearing within 7 days of certification.
In United States v. Katso, 74 M.J. 273 (C.A.A.F. Jun. 30, 2015) (CAAFlog case page), CAAF reversed the published decision of the Air Force CCA that found a Confrontation Clause violation in the testimony of a Government DNA expert who did not conduct the DNA testing at issue in the case, concluding that the expert merely (and properly) reviewed and relied upon the work of others to reach his own opinions.
The Air Force CCA’s short-lived opinion would have been a significant Confrontation Clause decision, and CAAF’s decision was a dramatic reversal for Airman Basic (E-1) Katso whose convictions of aggravated sexual assault, burglary, and unlawful entry, and whose sentence of confinement for ten years, total forfeitures, and a dishonorable discharge, had been reversed by the Air Force CCA, with a rehearing authorized. Katso sought certiorari of CAAF’s decision, but it was denied, and the case was returned to the Air Force CCA for further review.
There, however, things got even more interesting, leading to a second published decision of the Air Force CCA, the award of 365 days of confinement credit to Katso, and now a second certification back to CAAF.