Thursday, November 08, 2007

Complicated but fascinating issue

On Tuesday, CAAF granted review of the following issue concerning court-martial composition:

WHETHER THE COURT-MARTIAL CONVENED BY SPECIAL ORDER AB-12 HAD PROPER JURISDICTION WHEN THAT ORDER DID NOT TRANSFER MEMBERS APPOINTED BY PRIOR ORDERS AB-01, AB-07, AND AB-09, BUT MEMBERS NAMED IN THOSE ORDERS NONETHELESS SAT AS MEMBERS OF APPELLANT'S COURT-MARTIAL.

United States v. Adams, __ M.J. ___, No. 07-0796/AF (C.A.A.F. Nov. 6, 2007) (order granted review).

The Air Force Court's unpublished opinion, which featured a lengthy discussion of this issue which the Air Force Court itself had originally identified, is available here. United States v. Adams, No. ACM 36226 (A.F. Ct. Crim. App. June 20, 2007).

2 comments:

No Man said...

Would JO'C have a problem with AFCCA's use of "the conduct of the parties involved in the court-martial to see what their understanding was of the convening authority’s intent" in analyzing the convening order? Inquiring minds want to know. Like a CA action, the convening order is a unilateral document. Proabably the same answer either way, but like my calculus teacher told me, even the blind squirrel sometimes finds the nut, show your work Mr. [No Man]!

John O'Connor said...

CAAFlog's description of this issue as "complicated" is right on.

To answer No Man's question, I would not find the actions of the parties to the court-martial particularly probative of the CA's intent because, frankly, I don't think anybody sitting in that court-martial has any particyular insight into the CA's thinking concerning composition of the court-martial.

If someone came forward with probative evidence that the final version of the convening order contained a scrivener's error, such that the members who showed up were the ones supposed to be detailed, I would tend to credit that.

My overarching thought, though admittedly tentative, is that an accused who didn't object to the composition of the court should not be permitted to lie low and then obtain relief on appeal if the trial goes badly. I would find that any error was waived. Somebody will probably tell me that this is a "jurisdictional" issues that can never be waived, but I'm not convinced of that no matter what the case law might or might not say.

But I will say that if the accused objected and the MJ pressed forward on the TC's statement that he "thought" an absent member had been excused, I'd reverse and make the government retry it in a millisecond.