Articles Tagged with appeal

It appears that Denedo’s case is over.  On 8 September 2010, the Court of Appeals for the Armed Forces, with C.J. Effron and J. Baker dissenting, denied the filing of a writ appeal petition out of time.  The majority writes:

In support of the motion for leave to file writ-appeal petition out of time, Denedo’s counsel explained that he “erroneously believed that this case was governed by Rule 19(a)(1)(B),” which provides sixty days from the date of the decision at the CCA for filing a petition for review with this court.

Appellate defense counsel requests this court suspend Rule 19(e) pursuant to our authority under C.A.A.F. Rule 33, which states “[f]or good cause shown, the Court may suspend any of these rules in a particular case, on application of a party or on its own motion, and may order proceedings in accordance with its direction.” In our view, neither the fact of the previous Supreme Court review of Denedo’s case, nor the Padilla case are relevant to our analysis as to whether there was good cause for a late filing.  Counsel’s claim that he erroneously believed that this court imposed a sixty day deadline for the appeal of writ-appeal petitions does not provide us with the requisite good cause for suspending the deadline for filing a writ-appeal.

United States v. Roach has been returned to AFCCA for a second time.

Initially the case was sent back because appellant’s case was decided before his counsel submitted a brief, and because the chief judge on his panel had made some public comments relating to the case.

This time the case goes back because the chief judge also recommended his temporary successor for the Roach case, thus violating the principal that a recused judge should have no further contact with the case.

CAAF has issued an opinion in United States v. Bradford, a government appeal of a pretrial ruling.

The appeal was on a military judge declination to pre-admit a Lab Package in a urinalysis case.  AFCCA had no trouble saying that a declination to pre-admit evidence is appealable.  CAAF had no trouble correctly saying that AFCCA was wrong.

The prosecution proffered the standard lab package and told the military judge they’d produce an expert at trial to discuss the package.  That basically was it.  On that the military judge was supposed to pre-admit the package.  Rather than pre-admit, the military judge told the prosecution that they’d need to produce witnesses and pull out some pages that might be pre-admitted separately.   The prosecution then ‘threatened’ the military judge that they were going to appeal.  Notably the military judge expressed an opinion that his “ruling” wasn’t appealable.  And it appeared the military judge was going to hold the prosecution to its burden to produce actual, like real, evidence.  Rather than produce evidence and testimony necessary to lay a foundation for the documents either in the motion or at trial, the prosecution, rather peevishly to my way of thinking, appealed.

United States v. Story.  Here the issue is two-fold: what is the response when the members want to call a witness, and what is permissible on appeal to demonstrate prejudice.  ACCA found error in the military judge denying the members an opportunity to call a witness.  On appeal, ACCA found that documents submitted by appellate government and appellate defense could not be considered.  This seems odd, because the defense is trying to show prejudice from the error and the government is trying to show lack of prejudice.

When the members returned, immediately after calling the court to order and accounting for the parties, the following colloquy ensued:

MJ: Members, the bailiff indicated that you had a question? Colonel Meyer is shaking her head.

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