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?