Wednesday, January 23, 2008

Surprising briefing order

Early this term, CAAF heard oral argument in United States v. Wilson, No. 06-0870/AR. Wilson was a holdover from last term in which CAAF wanted additional briefing and argument on whether "the defense of mistake of fact as to age [is] available with respect to a charge of sodomy with a child under the age of 16, Article 125." See United States v. Wilson, 65 M.J. 254 (C.A.A.F. 2007) (order).

On Friday, CAAF granted review of the petition in United States v. Rigby, __ M.J. ___, No. 08-0029/AR (C.A.A.F. Jan. 18, 2008). The issue was "WHETHER THE MILITARY JUDGE ERRED WHEN HE FAILED TO GIVE THE REQUESTED MISTAKE OF FACT AS TO AGE INSTRUCTION FOR THE OFFENSE OF SODOMY WITH A CHILD UNDER THE AGE OF SIXTEEN." It's no surprise that CAAF would grant review of that issue in light of the pending Wilson decision. But the final line of the Rigby order did surprise me: "Briefs will be filed under Rule 25." It appears to me that CAAF is essentially ordering the parties to rebrief the Wilson issue, though since Rigby arises from the same service as Wilson, the end product may be little more than a cut-and-paste version of the previously filed briefs. Does anyone have a theory as to why CAAF would order briefs in Rigby?

9 comments:

Alan Stanwyck said...

The only difference I see is Wilson's being a guilty plea (no instructions) vs. Rigby's being a contest (instructions). The nature of the error is, therefore, different, but does this really make a legal difference? I can't figure out why it would.

Speaking of CAAF, does anyone else think they are shortchanging servicemembers in terms of their review responsibility? They take scant few cases. What's more, they take significant time to crank out opinions. The busier circuits (e.g., the 7th) are generally as fast or faster than CAAF.

John O'Connor said...

Well, that can be a significant difference. In the guilty plea case, perhaps the potential defense was not made so obvious as to support disturbing a voluntary plea of guilty.

In the contested case, there is neitehr the deferential review accorded providence inquiries, nor any waiver issues as it appears the instruction was requested.

Anonymous said...

The fact that this is being briefed tells me Wilson is coming out in favor the appellant. No reason to require briefing in this instructions context otherwise. So, you heard it here first, mistake of fact does apply to sodomy w/ a child.

Anonymous said...

Alan,
Yes - CAAF takes too few cases. Unlike other federal circuits, it also places too much emphasis on oral argument. It reeks of military pomp. CAAF does not do enough intermediate oversight - short opinions - like other circuits. So CAAF should expand its seemingly new development of at least issuing summary rulings at the petition stage. A rule of thumb to test its commitment to servicemembers is whether it takes about 10% of contested cases. There are almost always issues in contested cases.

Just called Vegas: 4-1 that Wilson will be decided in favor of the Government.

Anonymous said...

I think CAAF hears too many cases. Review the issues this term and put yourself to sleep. When the vast majority of courts-martial these days are guilty pleas, the only issues available to review are the correctness of the plea and whether the SJA put new matter in the addendum. Don't blame CAAF for the dearth of good material.

Anonymous said...

Nonsense. You are correct about guilty pleas, but your method at determining how many quality issues there are is deeply flawed. You actually read CAAF's opinions to determine the quality of the potential issues? That leaves a universe of unseen/unheard issues.

No. The real test is that one should be able to take all of the issue statements - at the petition stage - and simply give Rorshack-like one-sentence answers to each by memory, a solid precedent, or what have you. If you read an issue statement and are left saying, "hey, that's a good question - what is the answer?" then there is more than likely an issue on which CAAF should speak.

I doubt that anybody could pass this test. There are a whole bunch of unresolved issues. And there are obvioulsy other reasons that CAAF declines to take such cases.

Anonymous said...

anon, please list the good and unresolved issues out there - even caaflog hasn't reported on many lately

No Man said...

Good unresolved issue #1: does Apprendi v. New Jersey apply to the military justice system . . . and not these silly appellate cases that deal with CCA's fact finding power? Issue #2: do servicemembers have a right to counsel in military certiorari petitions and habeas proceedings? Issue #3: . . . sorry Ineed to get back to work. Talk amo0ngst yourselves. And in that talk don;t suggest these issues have not been raised at CAAF. I KNOW they have.

John O'Connor said...

I'll add Issue #3: Does a CCA really have writ power to intervene in a summary court-martial?