In the case of Lance Corporal Anthony T. Hall, CAAF granted review of two issues. United States v. Hall, __ M.J. ___, No. 07-0384/MC (C.A.A.F. Aug. 17, 2007). One of them is an amusing little issue:
WHETHER THE LOWER COURT ERRED IN STATING THAT APPELLANT HAD RECEIVED A DISHONORABLE DISCHARGE AT TRIAL, WHEN THE MEMBERS SENTENCED HIM TO A BAD-CONDUCT DISCHARGE, AND THE CONVENING AUTHORITY APPROVED ONLY A BAD-CONDUCT DISCHARGE.
Did CAAF essentially grant review of whether there was a typo in NMCCA's opinion. (NMCCA's opinion, by the way, is on NKO but doesn't appear to be on its public web site. I'll see if we can get it up on CAAFlog.com.) CAAF didn't order briefing on this issue, so apparently it can rule on whether there was a typo without having to hear further from the parties.
Here's the second issue, which the parties were ordered to brief:
WHETHER THE LOWER COURT ERRED IN FINDING THAT THE MILITARY JUDGE'S DECISION TO ALLOW, OVER DEFENSE OBJECTION, A NONEXPERT NCIS AGENT TO PROVIDE EXPERT TESTIMONY TO THE MEMBERS WAS HARMLESS, WHERE THIS WAS IN VIOLATION OF MILITARY RULE OF EVIDENCE 701(c), AND THE GOVERNMENT HAS CONCEDED THAT THIS TESTIMONY WAS BOTH MATERIAL TO ITS CASE AND WAS OF HIGH QUALITY.
Now that's another extremely well-phrased issue presented. Here is the NMCCA opinion's entire analysis of this issue:
We review the military judge’s decision to permit Special Agent Rizas to testify that the burn pattern of the victim’s injuries were indicative of non-accidental trauma for abuse of discretion. Assuming without deciding that the military judge erred, we find that the error was harmless beyond a reasonable doubt. There was ample medical expert testimony by Dr. Schneider relating to how the observed burn patterns indicated a non-accidental cause of injury. Record at 201-03. We find, therefore, that the military judge did not abuse his discretion.
United States v. Hall, No. NMCCA 200600805, slip op. at 3 (N-M. Ct. Crim. App. March 20, 2007).
Is it just me, or is the second sentence of that excerpt inconsistent with the last sentence?
In the second Hall case, CAAF specified a legal sufficiency issue:
WHETHER THE EVIDENCE LEGALLY WAS SUFFICIENT TO CONVICT APPELLANT OF MAKING A FALSE OFFICIAL STATEMENT THAT HE "WAS NOT PRESENT AT THE TIME OF THE ALLEGED ACT."
United States v. Hall, __ M.J. ___, No. 07-0430/AR (C.A.A.F. Aug. 17, 2007). I couldn't find the ACCA opinion on line.
Given this specified issue and the recent granting of the extremely artful legal sufficiency issue in United States v. Bright, __ M.J. ___, No. 07-0269/AR (C.A.A.F. Aug. 16, 2007), it's a good thing that, contrary to my assumption, legal sufficiency can present a viable avenue for relief.