CAAF today granted review on this issue:  “WHETHER APPELLANT’S FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION WAS VIOLATED WHEN HE WAS PROSECUTED FOR OFFENSES ABOUT WHICH HE HAD PROVIDED IMMUNIZED STATEMENTS.”  United States v. Morrissette, __ M.J. __, No. 11-0282/AR (C.A.A.F. Apr. 14, 2011).  ACCA’s unpublished decision in the case is available here. United States v. Morrissette, No. ARMY 20090166 (A. Ct. Crim. App. Dec. 22, 2010).

CAAF also granted review of a Fosler trailer, see United States v. Fosler, __ M.J. ___, No. 11-0149/MC (C.A.A.F. Feb. 9, 2011), but ordered that no briefs be filed.  Here’s the granted issue:  “WETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.”  United States v. Lirley, __ M.J. __, No. 11-0303/MC (C.A.A.F. Apr. 14, 2011).  NMCCA’s unpublished decision in the case is available hereUnited States v. Lirley, No. NMCCA 201000502 (N-M. Ct. Crim. App. Jan. 27, 2011) (per curiam).

6 Responses to “CAAF grants”

  1. Michael Lowrey says:

    CAAF granted review in Morrissette on an issue that ACCA didn’t even bother to discuss in its opinion. That’s not exactly an endorsement of the Army court’s work.

  2. Dew_Process says:

    Wonder if GAD will cross-appeal??

  3. Stewie says:

    Not having read the brief of appellant but knowing that Army DAD in its current incarnation doesn’t just make stuff up without some basis of fact and law (even if ultimately not a “winner”), and knowing that Castigar issues are fairly straight-forward (if not always easy) to analyze, it is surprising that the Army Court didn’t even talk about the issue, even if they thought it wasn’t an issue at the end of the day.

    I know the prevailing theory seems to be that if ACCA doesn’t give an opinion maybe CAAF is less likely to grant on an issue they don’t write on, but I wonder if often the opposite is true. Not giving an opinion one way or the other forces CAAF to step in?

  4. Snuffy says:

    If it is a complex or difficult decsion, the service court can just punt. If they write and get it wrong- they feel bad. True, if they ignore it completely, there is nothing to which CAAF can defer, but no matter which way CAAF goes, the service court judges can say (to themeselves anyway) “that’s what I would’a done.” This case is very complicated factually. Multiple coaccused, multiple immunity grants, multiple MJ rulings, two different commands, no walling off of the evidence until way late and even then . . . , etc.

  5. stewie says:

    Punting is probably what happens as you say, but it seems a little…trying to think of a non-pejorative word here that doesn’t rhyme with bowardly…to not do one’s job even if it ends up being decided to be wrong later.

    If I did that, I’d almost never put pen to paper.

    Seems to me that even if wrong, it could add to legal scholarship to see more opinions out of ACCA, right or wrong.

  6. Dew_Process says:

    Having read the Supp to the Petition, I suspect ACCA ducked this issue because even they couldn’t tweak the facts in favor of the government. The first MJ disqualified everyone involved because all had been exposed to the many [5 I believe] immunized statements given by Morrissette before he was charged. The entire matter than got transferred to a new command.

    It appears that no one had a firm grasp of Kastigar and its progeny and its potential to derail a prosecution. Nor did anyone apparently understand just how a “Chinese Wall” was supposed to work, and material that should have been redacted, wasn’t and the new TC worked closely with the old (disqualified SJA). Both the TC and Art. 32, IO had a complete, unredacted copy of the 1st IO’s report, thus continuing the taint.

    The second MJ, denied the second Motion to Dismiss – the subject of the CAAF grant. Yet, he found that (1) the criminal investigation was still on-going at the time of the immunity grant; (2) the decision to prosecute, not made prior to the government getting all of the immunized statements; (3) and continued interaction between the first, disqualified OSJA and the second prosecution team.

    However, and what I perceived to be the thrust of the appeal to CAAF, is that the 2nd MJ denied the Kastigar motion because the defense did not show prejudice. But, Kastigar (to include CAAF’s progeny) puts the burden on the government to prove a complete lack of taint, not making the defense prove prejudice.

    If you don’t recall the facts, here’s the government’s synopsis:… Here’s the S&S version:…