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Whether the military judge erred when he denied trial defense counsel’s motion to suppress appellant’s positive urinalysis test result and the evidence derived therefrom.
United States v. Fletcher, __ M.J. ___, No. 04-0465/AF (C.A.A.F. Feb. 13, 2008) (order). Here's a link to the Air Force Court's opinion in the case.
The second case that CAAF granted yesterday looks like a Scott trailer, which is a bit curious because CAAF issued its opinion in Scott yesterday. The issue is:
Whether the addendum to the staff judge advocate's recommendation contains "new matter" not provided to defense counsel for comment, necessitating a new convening authority action in this case.
United States v. Ackley, __ M.J. ___, No. 08-0031/AF (C.A.A.F. Feb. 13, 2008) (order).
Here's a link to the Air Force Court's opinion in the case. It tells us that the SJA advised the convening authority that the "court members who sentenced [appellant] had the best opportunity to judge the severity of the crimes committed and the true character of the airman who committed those crimes." United States v. Ackley, slip op. at 3, No. ACM 36703 (A.F. Ct. Crim. App. Aug 16, 2007).
Will CAAF use Ackley to test the limits of the rather intriguing footnote 3 in the Scott opinion? See United States v. Scott, __ M.J. ___, No. 07-0597/AF, slip op. at 9 n.3 (C.A.A.F. Feb. 13, 2008) ("While we do not disagree that an addendum that actually invited the convening authority to abdicate his duties because the trier of fact had reviewed all clemency materials, whether true or not, would be new matter within the meaning of R.C.M. 1106(f)(7), see [United States v. Catalani, 46 M.J. 325, 328 (C.A.A.F. 1997)], the language at issue in this case falls short of that mark.").
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I don't see Ackley as a Scott trailer precisely for the reason you wonder about: I think the footnote in Scott takes Ackley out of the holding in that case. Basically, you can say the members heard the evidence and sentenced the accused, but you can't tell the CA that they were better able to evaluate the evidence, particularly since sentencing and clemency are two different types of considerations.
As if these niggling distinctions in SJARs would really matter (and that's not a contention that the distinction between Scott and Ackley is an inappropriate place to sdraw the line).
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