Tuesday, March 20, 2007

Interesting ACCA opinon

ACCA released on interesting little opinion today. In United States v. Bonner, __ M.J. ___, No. ARMY 20040196 (A. Ct. Crim. App. 20 March 2007), the court held that where a convening authority sets aside a finding as a matter of clemency, he is under no obligation to provide any accompanying sentence relief and a staff judge advocate need not advise the CA to perform a Sales-type sentence reassessment. Rather, all that is necessary is that the CA must "determine the sentence remains appropriate in light of the disapproved findings." Id., slip op. at 5.

ACCA slips in a service split in a footnote, id., slip op. at 3-4 n.2, but the disagreement is pure dicta. ACCA rejects the Coast Guard Court's conclusion that an SJA must advise the CA about the standard for sentence reassessment in cases of possible legal error. Id. (citing United States v. Meek, 58 M.J. 579 (C.G. Ct. Crim. App. 2003)). But ACCA had already noted that it found "no evidence of a determination of possible legal error by the SJA in this case, nor do we see any basis that would support such a determination." Bonner, slip op. at 3 n.1. So ACCA's gratuitous shot at Meek, right or wrong, shouldn't become the basis for a CAAF grant to resolve the service split, since any resolution of that point would be purely advisory (as was ACCA's resolution of that point in Bonner).


No Man said...
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No Man said...

I can't say no to anything in this post, so I will depart from my naysayer role and agree with CAAFlog on just how interesting and irrelevant this case may be. Taking ACCA's logic and running with it, I would assume they found that ACCA was not required to do a Sales analysis after the CA set aside the finding because the CCAs can only act on approved findings. I am sure CAAFlog sees the potential for mischief that this creates. If the decision to set aside a finding and approval of the same sentence are essentially unreviewable, what incentive does a CA have NOT to set aside questionable findings in close cases? By setting aside close findings the CA would essentially blunt the power of the CCAs in reviewing cases for legal and factual error. So long as the case is over charged, as discussed on CAAFlog something that occurs all too frequently in the MilJus system, the CA can rid the case of any questionable findings and still get the same pound of flesh-without the hassle of actually having the findings be found legal and correct on appellate review. Isn't there a legislative purpose argument in here somewhere that this case is contrary to congressional design of the system that gives CCAs factual and legal review powers? I am guessing my colleague J.O. would say no and give me a stern talk about executive discretion and CA prerogative--he'd be correct, but I'd still argue this just ain't right!

John O'Connor said...

Is this pick on J.O. day? That's three of you now.