In an Order dated 31 January 2007, the Court of Appeals for the Armed Forces set aside our decision, stating that "[b]ecause two specifications under two charges remain (premeditated murder under Charge I and robbery under Charge II), it is unclear what findings were approved by the Court of Criminal Appeals." The record was then returned to the Judge Advocate General for remand to this court "for clarification as to the affirmed findings." The record of trial was returned to this court on 12 February 2007.
Since all the judges who participated in this panel's original decision of 10 February 2006 have since left active duty, the current senior judge of Panel One of this court contacted the author of the original decision for clarification as to the affirmed findings. The author of the original opinion, Brigadier General Charles Wm. Dorman, confirmed that the court’s original intent was to set aside only the felony murder specification, and to affirm the remaining charges and specifications; that is, Charge I and its sole remaining specification, a violation of Article 118, UCMJ, and Charge II and its sole specification, a violation of Article 122, UCMJ.
Therefore, for the reasons stated in our decision dated 10 February 2006, which we hereby adopt, we set aside and dismiss Specification 2 of Charge I; affirm the findings of guilty of Charge I and Specification 1 thereunder, and Charge II and its sole specification; and affirm the sentence as approved by the convening authority.
Id., slip op. at 2.
That jurisprudential approach gives me pause, but on Friday CAAF affirmed that decision without addressing whether it is appropriate for a court to consult with a retired member to discern the meaning of an earlier judicial opinion -- a matter to now be raised by a cert petition, perhaps. CAAF instead addressed whether Coleman's due process rights were violated by post-trial and appellate delay. The court concluded that even if such a violation did occur, any such error "was harmless beyond a reasonable doubt" and affirmed. United States v. Coleman, __ M.J. ___, No. 06-0532/NA (C.A.A.F. Nov. 16, 2007) (summary disposition).