Wednesday, July 18, 2007

Webb of deceit

Today's CAAF daily journal update included an Air Force certificate of review. United States v. Webb, __ M.J. ___, No. 07-5003/AF (C.A.A.F. July 17, 2007).

You may remember United States v. Webb, No. Misc. Dkt. 2007-01 (A.F. Ct. Crim. App. May 10, 2007), a government appeal of a military judge's ruling granting a new trial due to a lying urinalysis observer that we previously discussed here. The facts were so disturbing that even as stalwart a prosecution supporter as JO'C thought that the military judge was correct in granting a new trial.

Now the Judge Advocate General of the Air Force is asking CAAF to decide whether JO'C and the Air Force Court were right. That's not the actual question he asked CAAF; rather, he posed these two questions to the court:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN GRANTING THE DEFENSE MOTION FOR NEW TRIAL

WHETHER PRIOR TO AUTHENTICATION THE MILITARY JUDGE HAS THE AUTHORITY IN A POST-TRIAL ARTICLE 39(a) SESSION TO SET ASIDE A CONVICTION AND ORDER A NEW TRIAL AS A REMEDY FOR A DISCOVERY VIOLATION DISCOVERED POST-TRIAL


I have a question for our Air Force readers. (Maybe I should say "Air Force reader." Fitz? Fitz?) The Air Force Court released its Webb opinion on 10 May. CAAF's rules provide that "[i]n cases involving a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC § 862, a certificate for review, together with a supporting brief in accordance with Rule 24 on behalf of the appellant, shall be filed with the Court by the Judge Advocate General no later than 30 days after the date of the decision of the Court of Criminal Appeals." C.A.A.F. R. 19(b)(1). The defense brief is due a mere 10 days later. Id.

Rule 19(b)(1) suggests two questions: (1) Why was the certificate of review filed 68 days after the Air Force Court's opinion? Was the deadline for filing the certificate validly tolled during some portion of that period, such as by the proper filing of a timely motion to reconsider? (2) If so, did the government file its brief on the mertis, in addition to the certificate of review, within the 30-day deadline as required by Rule 19(b)(1)? Fitz?

4 comments:

John O'Connor said...

Hold on a minute. In the interest of protecting my reputation, recall that my sense that AFCCA came to the right result was solely on one of the two issues: whether a new trial is appropriate under the circumstances, even if it's for the purpose of hoping Webb can get a panel full of rubes stupid enough to fall for the "impeachable observer" bit. I specifically expressed no opinion on whether the military judge has the power to order such relief (a question I had not really thought much about and which I will continue not to think much about). It just seems that whoever has the power to order a new trial properly should do so in those circumstances.

And I resent being called a prosecution stalwart. I call 'em right down the middle. I can't help it who's in the right most of the time.

Anonymous said...

Where does CAAF get the authority for Rule 19(b)(1)? Article 67 plainly states that CAAF shall review cases referred to it by a JAG. There is no time limit in the statute. I doubt that CAAF can create an enforcable jurisdictional time limit in their rules without any support in the governing statute.

Sacramentum said...

I disagree. I don't think a statute that says you can appeal but doesn't set a time limit to do so means a court must hear that appeal no matter how old it is.

I think courts, even CAAF, have a right to set rules and regulations that will be upheld if they are reasonable.

Thirty days seems reasonable to me, although I don't claim to have any expertise on how an appellate court would view it. And the Government could always ask for a suspension of the rules under Rule 33 for good cause shown.

CAAFlog said...

Anonymous,

The short answer to the question of where CAAF gets its authority to prescribe Rule 19 is: Congress. The slightly longer answer is Article 144: "The United States Court of Appeals for the Armed Forces may prescribe its rules of procedure and may determine the number of judges required to constitute a quorum."