The thrill of victory and the agony of spinning wildly off the end of a ski jump ramp and crashing into a restraining fence

The two most exciting weeks on this year's military justice appellate calendar occurred between 20 September and 2 October. Think back to your youth – scratch that; think back to my youth – and Jim McKay intoning on the Wide World of Sports about the thrill of victory and the agony of defeat. (All these years later, I have no recollection of what aired during the “thrill of victory” half of that dichotomy, but I well remember Slovenian ski jumper Vinko Bogataj’s horrific crash providing the visual for “the agony of defeat.”)

Eleven of CAAF's 2006 Term’s seventy-six opinions came out in September. And there were some thrilling victories and some agonizing defeats. Kisala rejected a challenge to the legality of an order to take the anthrax vaccine. Loving ordered a DuBay hearing to explore an ineffective assistance of counsel claim in a death penalty case that the Supreme Court had affirmed a decade earlier. Lane boldly held that a sitting Senator may not serve as a Court of Criminal Appeals judge.

Those two weeks concluded with the orders list from the Supremes’ long conference – with cert petitions in Quintanilla and Magyari playing the part of Vinko Bogataj. After the CAAF end o' term thrill ride, October seems like the tamest of merry-go-rounds. No CAAF opinions. No Supreme Court opinions. Just the semi-weekly updates of the “Daily” Journal to keep us going.

Things got so bad this week that I actually started reading CCA opinions for fun. And I came across two interesting opinions. The most recent opinions on the NMCCA web site are, inexplicably, both more than a month old. (Presumably the court has done something of note in more than a month.) Both are unpublished, but both are worth a read. I’ll discuss one in this post and the other later in the weekend.

United States v. O’Toole, No. 200600169 (N-M. Ct. Crim. App. Sept. 11, 2006), delivers a judicial spanking the likes of which haven’t been seen since Moreno. (Granted, Moreno wasn’t very long ago, but you get the point.) The hapless Petty Officer O’Toole had a deal to disapprove any adjudged BCD. That provision became relevant when the military judge imposed one. The legal officer then advised the CA that no BCD had been adjudged and that the pretrial agreement didn’t limit the CA’s ability to approve one. The legal officer then advised the CA to approve the sentence as adjudged. Despite receiving a copy of the highly faulty legal officer’s advice, trial defense counsel did nothing. Somehow the CA’s action managed to correctly state the adjudged sentence, but was ambiguous as to whether the CA was approving or disapproving the BCD. (The action said that “the sentence is approved and will be executed, except for the part of the sentence extending to the bad-conduct discharge.” Did that exception apply to the approval of the BCD or did it apply to its execution. Who knows?) The CA’s action then ordered the record forwarded to NMCCA for Article 66 review – which would be done only if the BCD had been approved.

NMCCA was not happy. In an opinion written by the now-retired Judge Diaz (a Marine Corps Reservist judge who is a distinguished trial jurist in North Carolina in civilian life), the court chastised the handling of the case from start to finish. Judge Diaz began his opinion by noting, “This case comes to us without assignments of error. It should not be before us at all.” The opinion then recounts the case’s confusing and careless journey to the Washington Navy Yard and roundly chastises all concerned. The decision is good reading. It reminds us not only that the individuals responsible for handling cases at the post-trial and appellate stages must be diligent, but also that we will miss Judge Diaz.

http://www.jag.navy.mil/NMCCA/O'TOOLE%20A.E.%20200600169%20UNPUB.doc

--Dwight Sullivan