CAAF grants review of four cases

In the first of two daily journal updates today, CAAF posted four orders from Tuesday granting review and ordering briefs:

No. 07-0544/AR. U.S. v. Kevin L. McILWAIN. CCA 20040095. Review granted on the following issue:

WHETHER THE MILITARY JUDGE, IN A TRIAL BEFORE A COURT-MARTIAL PANEL ERRED IN DENYING A MOTION FOR RECUSAL AFTER STATING THAT WHILE SHE BELIEVED SHE COULD REMAIN IMPARTIAL IN A TRIAL BY MEMBERS, SHE WOULD RECUSE HERSELF IF SHE WERE THE TRIER OF FACT. Compare, e.g., Parenteau v. Jacobson, 586 N.E.2d 15, 18 (Mass. App. Ct. 1993) with Walberg v. Israel, 766 F.2d 1071, 1076 (7th Cir. 1985).

[I can't find the decision below.]

No. 07-0639/MC. U.S. v. David M. BROOKS. CCA 200501266. Review granted on the following issue:

WHETHER APPELLANT'S SIXTH AMENDMENT RIGHT TO COUNSEL HAS BEEN VIOLATED WHERE, WHILE IN CONFINEMENT, BRIG PERSONNEL MONITORED HIS PHONE CONVERSATIONS WITH APPELLATE DEFENSE COUNSEL AND SEIZED HIS PRIVILEGED CORRESPONDENCE.

[Here is a link to the decision below. The lower court's treatment of this issue was rather cursory. The Navy-Marine Corps Court held:

In his final assignment of error, the appellant claims that procedures in place at the Camp Lejeune Brig have chilled his ability to communicate freely with his appellate counsel in preparation of his appeal in violation of the Sixth Amendment’s right to assistance of counsel. "'[A] prisoner must seek administrative relief prior to invoking judicial intervention. In this regard, appellant must show us, absent some unusual or egregious circumstance, that he has exhausted the prisoner-grievance system of the [brig] and that he has petitioned for relief under Article 138 UCMJ, 10 U.S.C. § 938.'" United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)(quoting United States v. Coffey, 38 M.J. 290, 291 (C.M.A. 1993)).

We find that the issue is not ripe for our review in that the appellant has failed to exhaust his available administrative remedies.[18] Therefore, we decline to grant relief. Even assuming this issue was ripe for our review, the evidence before us fails to show how the alleged improper brig practices have negatively impacted the appellant's ability to actively participate with his appellate counsel in the appellate process.

[18] That the appellant is aware of these available administrative remedies is evidenced by an Article 138, UCMJ, Complaint of Wrongs, not associated with this assignment of error, that he filed while in the brig. Defense Motion to Attach of 4 Aug 2006, App. F. Additionally, we note the appellant submitted a request mast chit to speak with the Commanding General, Marine Corps Base, Camp Lejeune, regarding issues associated with counsel communications, which he later withdrew, apparently after reaching successful resolution at an intermediate stage of the process. Defense Motion to Attach of 19 Jun 2006, App. E.

United States v. Brooks, No. NMCCA 200501266, slip op. at 16 (N-M. Ct. Crim. App. May 16, 2007).]

No. 07-0685/AF. U.S. v. Michael RODRIGUEZ. CCA 36455. Review granted on the following issue:

SINCE TWO OF THREE ALLEGED USES OF MARIJUANA WERE BASED ON UNCORROBORATED CONFESSIONS AND APPELLANT'S CONVICTION FOR USING MARIJUANA ON DIVERS OCCASIONS WAS ACCORDINGLY TRANSFORMED INTO A SINGLE USE CONVICTION BY THE AFCCA, WHETHER UNITED STATES v. SEIDER AND UNITED STATES v. WALTERS PROHIBIT AFFIRMING EVEN A SINGLE USE OF MARIJUANA BECAUSE THE MEMBERS COULD HAVE BASED THEIR "ON DIVERS OCCASIONS" CONVICTION ON THE TWO UNCORROBORATED CONFESSIONS AND FOUND APPELLANT NOT GUILTY OF THE ALLEGED USE NOW USED BY THE AFCCA TO AFFIRM THE SPECIFICATION.

[Here is a link to the decision below.]

No. 07-0690/AF. U.S. v. Rodger J. DAY. CCA 36423. Review granted on the following issue:

WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION OF CHARGE I AND ITS SPECIFICATION, FALSE OFFICIAL STATEMENT, ARTICLE 107, UCMJ, WHERE THE STATEMENTS WERE NOT "OFFICIAL" STATEMENTS.

[The false official statement conviction in Day resulted from information he provided to a 911 dispatcher and firemen concerning his infant son, who died while in the appellant's care. He argued before the Air Force Court that "his statements were not 'official' because they were made to civilians and were not related to his military duties." United States v. Day, No. ACM 36423, slip op. at 3(A.F. Ct. Crim. App. May 9, 2007). The Air Force Court rejected this argument. Id.]