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The Judge Advocate General of the Navy has certified the following issue to CAAF:
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY HELD THAT THE MILITARY JUDGE ABUSED HIS DISCRETION BY FINDING THE 13-YEAR OLD WITNESS UNAVAILABLE ON THE BASIS OF MENTAL ILLNESS OR INFIRMITY, AND THUS THAT THE MILITARY JUDGE HAD ERRONEOUSLY ADMITTED THE WITNESS’ VIDEOTAPED DEPOSITION.
The case is United States v. Cabrera-Frattini, No. 07-5001. The Navy-Marine Corps Court's unreported ruling is available at http://www.jag.navy.mil/NMCCA/CABRERA-FRATTINI%20J.R.%20200201665%20UNPUB.doc. The Navy-Marine Corps Court panel split 2-1, with Chief Judge Rolph writing a lengthy and thoughtful dissent.
--Dwight Sullivan
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- 2008 Military Judges' Benchbook web site
- AFMAN 51-203, Records of Trial (1 Oct 1999)
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- Air Force Instruction 51-201, Administration of Military Justice (21 Dec 07)
- Air Force Rules of Professional Conduct
- AR 27-10, Military Justice (16 Nov 2005)
- AR 27-26, Rules of Professional Conduct for Lawyers (1 May 1992)
- COMDTINST M5810.1D, Military Justice Manual (17 Aug 2000)
- Congressional Research Service, Statutory Interpretation: General Principles and Trends (March 30, 2006 ed.)
- Congressional Research Service, The Constitution of the United States of America, Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States (2002) with 2006 supplement
- JAGINST 5803.1C, Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General (9 Nov 04)
- JAGINST 5810.2A, Military Justice Regulations (17 Sep 93)
- JAGMAN, JAGINST 5800.7E (20 Jun 07)
- Law Library Microform Consortium, Military Law Collection
- LOC military law collection
- Manual for Courts-Martial (2008 ed.)
- Manual for Courts-Martial, United States (2005 ed.)
- Manual of the Judge Advocate General (JAGMAN), JAGINST 5800.7E (20 Jun 2007)
- Military Justice, Army Regulation 27-10 (16 Nov 2005)
- UCMJ (as of 28 Jan 2008)
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2 comments:
Anybody notice the timeline? The case was decided 2 August 2006. Lexis does not indicate a motion for reconsideration and I couldn't find any previous mention of the case on the Daily Journal. Doesn't CAAF Rule 19(b)(3) require certificates for review to be filed no later than 30 days after the decision. Did the government really blow the deadline by so much? The government routinely files oppositions to petitions that are untimely.
Does CAAF even have the ability to refuse to hear an untimely government appeal in light of Article 67, which does not provide timelines for certificates?
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