The era of three-part harmony ends

CAAF today published its opinion in United States v. Gutierrez, No. 06-5005/AR. It is another opinion of the three-judge version of CAAF -- version 07.1. Gutierrez is the first divided opinion of the term, with Judge Erdmann writing for himself and Chief Judge Effron while Judge Baker dissented.

Gutierrez reverses an ACCA ruling in favor of the accused. The Judge Advocate General of the Army certified the case to CAAF. CAAF held that the defense counsel had affirmatively waived a mistake of fact instruction as to an assault consummated by a battery charge.

In dissent, Judge Baker argues that the military judge has a sua sponte duty to instruct on those affirmative defenses that the government bears the burden to rebut if reasonably raised by the evidence.

Only one case remains to be decided by CAAF version 07.1: United States v. Wise, No. 06-0610/AR. You may recall the fascinating issue in Wise: "Whether Appellant's confinement conditions, including and in particular with respect to his claim of having been confined with Enemy Prisoners of War in Iraq, were unlawful, and whether, in the context presented, Appellant forfeited his claims of unlawful post-trial confinement by failing to exhaust his administrative remedies under United States v. White, 54 M.J. 469 (C.A.A.F. 2001)." Wise was argued on 28 November.