Articles Tagged with caaf

CAAF has issued an opinion in United States v. Nerad.  RYAN, J., delivered the opinion of the Court, in which EFFRON, C.J., and ERDMANN, J., joined. BAKER, J., filed a separate opinion concurring in the result. STUCKY, J., filed a separate dissenting opinion.

Nerad gets a remand to AFCCA for the court to clarify it’s ruling.

In United States v. Morton, ACCA on remand from CAAF found no “dramatic change in the penalty landscape” and affirmed the sentence imposed at trial.

On first review ACCA had set-aside two specifications regarding a falsification of a sick-slip under Article 123, UCMJ.  But ACCA then affirmed two specifications thought to be closely related to the dismissed specifications.  CAAF dismissed the two specifications and said that:

By dismissing those specifications, our superior court rang the death knell of the “closely-related offense” doctrine. United States v. Morton, 69 M.J. 12, 13 (C.A.A.F. 2010). Also as part of their decision, our superior court returned the record of trial to The Judge Advocate General for remand to this court for sentence reassessment.

CAAF has decided:  United States v. Contreras, No. 09-0754/AF

We granted review of the following issue:

WHETHER THE HOUSEBREAKING CHARGE SHOULD BE SET ASIDE BECAUSE THE UNDERLYING CRIMINAL OFFENSE, INDECENT ACTS WITH ANOTHER UNDER ARTICLE 134, UCMJ, IS A PURELY MILITARY OFFENSE.

CAAF has decided United States v. Graner.  Graner loses.

We granted review in this Abu Ghraib case to determine whether the military judge abused his discretion in (1) refusing to compel the Government to produce certain memoranda requested by the defense; (2) excluding the testimony of, and an e-mail
from, Major Ponce; and (3) limiting the testimony of a defense expert witness. We hold that the military judge did not abuse his discretion in any of these decisions and affirm the judgment of the United States Army Court of Criminal Appeals (CCA).

CAAF’s journal for 22 June 2010 notes:

No. 10-0468/AR. U.S. v. Sonya M. WATSON. CCA 20080175. Review granted on the following issue:

WHETHER THE ARMY COURT ERRED WHEN IT RULED THAT APPELLANT’S ADMINISTRATIVE DISCHARGE WAS VOIDABLE AND PROPERLY REVOKED AND DID NOT REMIT THE ADJUDGED DISMISSAL.

The U.S. Supreme Court decided City of Ontario v. Quon today.  Quon is a case about searching pagers and cellphones.

Our clients convicted of child pornography offenses and certain other offenses in which the internet is case related are restricted in computer access post-release.  I mention Quon because of an interesting comment at Sentencing Law & Policy. 

I recently had to deal with the Federal Probation Service and the Air Force Clemency & Parole Board about a former now paroled client alleged to have improperly used computers to search for employment.  Employment is necessary for parole, and most state funded employment offices, and many employers require applicants to use computers to search for a job or to apply for a job.  We resolved the case in the client’s favor and parole was not revoked.  The parole and FPS rules do allow computer use in limited circumstances related to seeking employment.  The rules are bureaucratic and subject to misunderstanding.  Basically the rules require a new “permission” to use a computer each time.  So going to Home Depot in the AM and Lowes in the PM requires two permissions.  So, here is the SL&P comment on an aspect of Quon.

Navy Times reports:

hutchins4.23th.jpg
Photo: AP/Navy Times

A military judge has allowed a Marine sergeant convicted of murder in one of the biggest war crimes cases to emerge from the Iraq war to walk free, nearly two months after a military appeals court ruled he had an unfair trial. . . . Hutchins had been serving an 11-year sentence. The others in his squad served less than 18 months.

Here is a link to the en banc United States v. Hutchins at NMCCA.

Here is CAAF’s journal entry for the certification for 7 June 2010.

No. 10-5003/MC. U.S., Appellant v. Lawrence G. HUTCHINS, Appellee. CCA 200800393.

Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING, INTER ALIA, THAT THE MILITARY JUDGE SEVERED THE ATTORNEY-CLIENT RELATIONSHIP WITH CAPTAIN BASS?

WHETHER UNDER R.C.M. 505(d)(2)(B), THE NAVY-MARINE CORPS COURT INCORRECTLY FOUND NO “GOOD CAUSE” ON THE RECORD FOR THE REPLACEMENT OF APPELLANT’S SECOND DETAILED DEFENSE COUNSEL WITH ANOTHER COUNSEL?

WHETHER THE LOWER COURT APPLIED THE WRONG STANDARD AND ERRONEOUSLY PRESUMED, WITHOUT ASSESSING, PREJUDICE AND SET ASIDE THE FINDINGS AND SENTENCE, WHERE APPELLANT’S STATUTORY RIGHTS, AND CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WERE SATISFIED THROUGHOUT TRIAL?

Appellant will file a brief in accordance with Rule 24 in support of the certified issues on or before the July 7, 2010. Appellee will file an answer no later than 30 days after the filing of Appellant’s brief. A reply to Appellee’s answer may be filed by the Appellant no later than 10 days after the filing of Appellee’s answer.

Dwight Sullivan says:

CCA opinions, CAAF has held, are inchoate and need not be given effect for 30 days as the government decides whether to seek reconsideration and the Judge Advocate General decides whether to certify the case to CAAF.  But CAAF has also held that when a CCA rules to free the accused, that decision will be given effect in 30 days even if the Judge Advocate General does certify the case.  So in the case of a confined servicemember who would be freed as the result of the CCA’s opinion, the government must either release him or treat him as a pretrial detainee, thus providing the right to an IRO hearing.  See generally United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997).

In Miller the AFTJAG certification included the following issues:

II. WHETHER OPINIONS OF THE AIR FORCE COURT OF CRIMINAL APPEALS ARE SELF-EXECUTING.

III. WHETHER, PRIOR TO THE EXPIRATION OF THE TIME PERIOD DURING WHICH RECONSIDERATION CAN BE REQUESTED OR CERTIFICATION BY THE JUDGE ADVOCATE GENERAL SOUGHT, AN AIR FORCE COURT OF CRIMINAL APPEALS OPINION IS “FINAL” OR REMAINS “INCHOATE.”

IV. WHETHER ARMY OFFICIALS PREMATURELY SOUGHT TO RELEASE APPELLEE FROM THE UNITED STATES DISCIPLINARY BARRACKS BASED UPON UNOFFICIAL NOTIFICATION BY DEFENSE COUNSEL OF AN INCHOATE, NON-SELF-EXECUTING OPINION OF THE AIR FORCE COURT OF CRIMINAL APPEALS WITH NO DIRECTION FROM A CONVENING AUTHORITY AS REQUIRED BY ARTICLE 66(e), UCMJ.

Miller held that:

The decisions of this Court and the court below are “not self-executing.” United States v. Kraffa, 11 M.J. 453, 455 (CMA 1981)(holding that “[a] decision of the Court of Military Review, 2 however, is not self-executing. The court issues no mandate, but its decision is forwarded to the convening authority for further action.”); United States v. Tanner, 3 M.J. 924, 926 (ACMR 1977) (holding that “neither the decisions nor the opinions of appellate courts, however, are self-executing; cases must be returned to those lower levels where officials and parties can be ordered to implement the court’s judgment”). The Judicial Branch is not an executive arm but depends on the Judge Advocate General and lower officials to execute its orders.

CAAF then discusses what happens depending on what action TJAG decides to take, or not take.

There have been instances in the past where a commander has refused to follow the judicial order to release an accused.  See e.g. Frage v. Moriarity.

The release does not mean that Hutchins cannot be re-confined if CAAF reverses NMCCA.  In that event the issue will be what credit, if any, he receives for “confinement served” between the date of this release and his being reconfined.  The answer may be none.

Marine Corps Times reports that:

A Camp Pendleton Marine whose murder conviction was recently overturned was released Monday after serving four years in prison for a major Iraqi war crimes case, his lawyer said.

An emotional Sgt. Lawrence Hutchins III vowed to be the best Marine he could be while he waits for the U.S. Court of Appeals for the Armed Forces to review his case, defense lawyer Babu Kaza told The Associated Press after leaving the closed hearing at Camp Pendleton.

CAAFLog has posted a link to the denial of certiorari in Pendergrass v. Indiana.  When the Supremes, or any appellate court, denies a petition this is what I usually think of.  Probably need to update my trial notebook because there must be a more recent “quote?”  Stern & Gressman must be past a 7th edition?

[D]enial of a petition for writ of certiorari . . . simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter "of sound judicial discretion." A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result.. . . Inasmuch, therefore,  all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated.  United States v. Carver, 260 U.S. 482 (1923).  See also, Evans and Jordan v. Stephens, et. al., 544 U.S. 942, n.1 (2005)("Nothing is more basic to the functioning of this Court than an understanding that denial of certiorari is occasioned by a variety of reasons which precludes the implication that were the case here the merits would go against the petitioner"); and see, Stern & Gressman, Supreme Court Practice, 7th ed., para. 5.7.

So, what will CAAF do about Blazier?

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