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).
• 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)