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Because I have only a portion of the opinion, I can't recite the decisional issue with complete accuracy. But the decision appears to ask whether a military judge may order a proceeding in revision to clean up a deficient providence inquiry.
The opinion thoroughly examines the case law in this area and notes a split among the services and even a split in the Air Force Court's own precedent on the question. The court ultimately holds:
[W]hen an accused has entered a plea of guilty and the military judge fails to complete an inquiry to some or all of the elements but nothing inconsistent with guilt has been raised, we believe that the military judge can order a post-trial Article 39(a) session under R.C.M. 1102 and complete the necessary inquiry prior to authentication of the record. If there is no objection from trial defense counsel at the time of the later session, counsel waives the opportunity to object, exception for cases of material prejudice.
Id., slip op. at 8.
Given the opinion's forthright disagreement with Army and Coast Guard precedent -- as well as with the Air Force Court's own opinion in United States v. Kaetzel, 48 C.M.R. 58 (A.F.C.M.R. 1973) -- a CAAF grant seems likely. See C.A.A.F. R. 21(b)(5)(B)(iii), (iv).
I won't be in a position to put the opinion up on CAAFlog's web site until next Wednesday. But if it's not up on the Air Force Court's web site by then, I'll post it next week.
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If you have access, the opinion is available at 2007 CCA LEXIS 527.
I've been following this issue with interest since NMCCA's published opinions in Lepage, 59 M.J. 659 (2003) and Crain, 63 M.J. 607 (2006).
It seems to me that the trend is supporting a conclusion that trial judges have the same authority as NMCCA to fix any and all trial errors(save factual insufficiency, under Art. 66), provided the substantial rights of the accused are not materially prejudiced in the process.
Maybe it should become common practice to file a post-trial brief with the trial judge in every case with meritorious issues, requesting the alleged errors at trial be corrected expeditiously?
Or, tactically, is better to wait the years it takes for the service appellate courts/CAAF to give relief?
SD
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