Thursday, February 22, 2007

CAAF invites amicus briefs

CAAF's web site today added the daily journal from Tuesday, 20 February. CAAF granted review of five cases, two of which it summarily affirmed.

One of the remaining three granted cases was the continuing saga of United States v. Pflueger, 05-0139/MC, with its question for the ages about the difference between a remitted adjudged BCD and a disapproved BCD. (We previously discussed Pflueger here.)

The issue in United States v. Foerster, No. 07-0093/AR, involves Crawford v. Washington's application to an affidavit by Sergeant J.P. that was admitted under Military Rule of Evidence 803(6) and 807. This issue leaves me scratching my head for two reasons. First, the granted issue gives us no idea what the affidavit was about, so the true nature of this granted issue isn't apparent. (Nor is the ACCA opinion available online.) Second, how can an exhibit, to use the granted issue's words, be admitted "into evidence, under Mil. R. Evid. 903(6) and 807"? Military Rule of Evidence 807 is the residual exception that allows a statement to be admitted if it is "not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness." It therefore appears to be metaphysically impossible for an exhibit to be admitted under both Rule 803(6) and 807, because if it is admitted under 803(6), it is definitionally excluded from 807. (A military judge could, of course, admit an exhibit under 803(6) or, in the alternative, 807, but can't admit an exhibit under both.)

Now the grant referred to in this post's title. In United States v. Wilson, No. 06-0870/AR, CAAF granted review of whether an honest and reasonable mistake of fact can constitute a defense to sodomy with a child under 16. (Wilson was a guilty plea case; the ACCA opinion does not appear to be online.) In addition to granting review in Wilson, CAAF's order invited all of the appellate government and defense divisions to file amicus briefs under Rule 26.


Fitzcarraldo said...

The Air Force has a parallel case to US v. Wilson awaiting CAAF's decision: US v. Christian, 63 M.J. 714 (A.F. Ct. Crim. App. 2006). I submitted my supp brief in October; I'm thinking that it and Wilson probably reached the Court around the same time. I'm also thinking that I'm part of the target audience for the amicus request. Do the appellate defense shops from the sea services have similar cases?

gene fidell said...

One wonders if it might not make sense for the Court of Appeals to extend invitations as well to entities other than the appellate divisions to file amicus briefs. NIMJ? JAA? ABA? NYC Bar Ass'n? BADC? NACDL? ACLU?

brian mizer said...

I am baffled by the C.A.A.F.'s grants in Christian and Wilson. Several of our attorneys at the Navy Appellate Defense Division, led by Colin Kisor, raised this issue in several cases two years ago. See e.g., United States v. Sirk, 2004 CCA LEXIS 217 (N-M. Ct. Crim. App. 2004)(unpublished decision). In Sirk, the parties stipulated that Sirk thought his "victim" of sodomy was 17. Following the pre-Lawrence/Marcum C.A.A.F. decision in Strode, the Navy-Marine Corps Court held that a mistake of fact concerning the victim's age was no defense to sodomy. I can't say that any of us were surprised by the Navy court's decision. But we were surprised when the C.A.A.F. declined review in each of the Navy-Marine Corps cases with this issue last winter. We are even more surprised why C.A.A.F. wants to hear from us now. Does this mean one of the two new members to the Court has an interest in this issue?

Gene, were amici invited in Marcum? If not, I understand your complaint about not being extended an invitation, but this may be a case that the ACLU or NIMJ may want to participate in.

John O'Connor said...

Doesn't the practice of overtly asking outside groups to file amicus briefs signal a lack of confidence that the appellate government and defense divisions can adequately represent their clients' interests? I would read that as, "this is a pretty important issue, we better bring in someone who knows what the heck they're talking about."

After all, it's not like these groups have an interest or perspective different from the accused such that one should assume, without receiving the appellant's brief, that the outside groups' perspective wouldn't be covered.

Marcus Fulton said...

Do I understand you to say that CCA is not applying CAAF's decision in Strode? Why not? Or just that age is no defense to unaggravated 125, which would make more sense?