CAAF has granted review in United States v. Trew of this issue (this is a link to Trew’s discussion on CAAFLog and the NMCCA opinion) (and here is my earlier post):
WHETHER, IN LIGHT OF UNITED STATES v. WALTERS, 58 M.J. 391 (C.A.A.F. 2003) AND UNITED STATES v. SEIDER, 60 M.J. 36 (C.A.A.F. 2004), THE CHARGE AND SPECIFICATION MUST BE DISMISSED WITH PREJUDICE, BECAUSE THE LOWER COURT COULD NOT CONDUCT A PROPER APPELLATE REVIEW UNDER ARTICLE 66 AND DOUBLE JEOPARDY PREVENTS A REHEARING. SEE UNITED STATES v. WILSON __ M.J. ___ (C.A.A.F. 2009).
There has been quite a bit of “heated” discussion on CAAFLog about United States v. Wilson, and how the Walters issue in that case was resolved.
Trew was a contested MJA case, where the accused was charged with diverse indecent acts. The MJ had previously suppressed part of Trew’s confession for lack of corroboration. Interestingly, the prosecution on the merits had the victim testify about multiple acts, but failed to ask the MJ to reconsider her ruling on the corroboration issue. At the close of the evidence the MJ found Trew guilty of a single LIO of assault and battery in violation of Article 128, UCMJ. At the close of the case, and this is the potential difference, the TC asked for clarification, but not special findings. NMCCA found that the MJ’s “clarification” and other indicia in the record was sufficient for them to know which act was the basis for the conviction and sufficient to do their review.
So will CAAF apply Wilson, or will it resolve the case on a factual distinction between Wilson and other cases. It could be argued that they don’t need to send the case back for clarification if you agree with NMCCA.