Wednesday, December 19, 2007

Interesting CAAF orders

Today's daily journal update included two orders in Navy-Marine Corps cases directing the Appellate Government Division to file replies to portions of the appellants' supplements. United States v. Rowe, __ M.J. ___, No. 07-0813/NA (C.A.A.F. Dec. 17, 2007); United States v. Miller, __ M.J. ___, No. 07-0817/NA (C.A.A.F. Dec. 17, 2007).

However, each order simply directed the Goverment to "file an answer to assigned issues I and II," without suggesting what those issues might be.

Could one of our Navy or Marine Corps readers -- living or dead -- fill us in about the particular issues that have apparently caught at least one CAAF judge's attention?

4 comments:

Anonymous said...

Rowe:

I. WHETHER THE MILITARY JUDGE FAILED TO ESTABLISH THAT APPELLANT TOOK ANY SUBSTANTIAL STEP BEYOND MERE PREPARATION TO CROSS THE CRIMINALITY THRESHOLD OF ‘ATTEMPT,’ THUS RENDERING THE PLEA OF GUILTY TO CHARGE II, SPECIFICATION 2 IMPROVIDENT.

II. WHETHER THE MILITARY JUDGE, AFTER THE AFFIRMATIVE DEFENSE OF VOLUNTARY ABANDONMENT BECAME APPARENT, FAILED TO SECURE SATISFACTORY DISCLAIMERS BY THE APPELLANT NEGATING THE DEFENSE, THUS RENDERING THE PLEA OF GUILTY TO CHARGE II, SPECIFICATION 2 IMPROVIDENT.

Miller:

I. WHETHER THE MILITARY JUDGE ERRED BY APPLYING THE LIBERAL GRANT RULE WHEN GRANTING TWO GOVERNMENT CHALLENGES FOR CAUSE.

II. WHETHER THE MILITARY JUDGE ERRED BY FAILING TO INSTRUCT THE MEMBERS THAT THE 911 TAPE-RECORDING OF THE VICTIM’S MOTHER REPORTING A RAPE AND IDENTIFYING APPELLANT AS THE PERPETRATOR COULD NOT BE CONSIDERED FOR THE TRUTH OF THE MATTER ASSERTED.

No Man said...

Speaking of interesting orders, anyone know what CAAF ordered NMCCA to consider on remand in Halsema? Excerpt from Dec. 17th's Daily Journal:

No. 07-0253/NA. U.S. v. John A. HALSEMA. CCA 2000137. On consideration of the petition for grant of review of the decision by the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the case is remanded to the Court of Criminal Appeals for consideration of assigned issue II. Following the conclusion of this matter, the record will be returned directly to this Court for further proceedings. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

Anonymous said...

Halsema:

II. WHETHER THE GOVERNMENT’S REFUSAL TO PROCESS APPELLATE DEFENSE COUNSEL’S REQUEST FOR ACCESS TO CLASSIFIED INFORMATION INFRINGES ON APPELLANT’S RIGHT TO EFFECTIVE REPRESENTATION.

No Man said...

That's an awful strange question not to answer on initial appellate review in Halsema. I hope the court was not too lazy to get into the in camera review that might be required for the assignment of error in Halsema. It would seem difficult to answer without reviewing the classified information requested by counsel. But, I will not ascribe such motives to a court that, by in large, does a good job reviewing the records that are before it. Let's see what NMCCA says on remand.