Thursday, April 24, 2008

CAAF summarily reverses NMCCA for apparently relying on facts from the Article 32 investigation

In United States v. Hayes, __ M.J. __, No. 08-0215/NA (C.A.A.F. Apr. 23, 2008) (summary disposition), CAAF observes that "it appears that in its rendition of the facts, the [Navy-Marine Corps] Court of Criminal Appeals may have considered matters from outside the record. The facts alleged in the decision appear to have been taken from the victim's summarized testimony presented at the Article 32, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 832 (2000), investigation, rather than from the evidence presented at trial." If so, NMCCA violated CAAF's case law holding that a CCA is limited to the evidence presented at trial when conducting factual sufficiency review and the evidence presented at trial plus matters considered by the CA before taking action when conducting sentence appropriateness review. See United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007).

So in Hayes, CAAF granted review of whether NMCCA "failed to conduct a proper review under Article 66(c) where, in its rendition of the facts of the case, that court appears to have considered evidence from outside the record." Hayes, No. 08-0215/NA (citation omitted). Then CAAF instantly resolved that issue by setting aside NMCCA's decision, which can be found here.


Anonymous said...

Hmm...maybe if NMCCA was populated with judges that had been judges at the trial level or had some modicum of military justice/trial experience they'd know the difference between trial testimony and pre-trial testimony. Next thing you know they'll be lifting whole parts of the government's brief for their own opinions.

Anonymous said...

Also, yet another subtle hint that only ONE appellate judge actually controls "his" case. This, while the other two judges simply give that opinion some comments and a review, but are otherwise busy with their "own" other cases. The image of a rigorous roundtable discussion and a serious scrub is probably just a myth.

Anonymous said...

Whether only one NMCCA judge per panel actually reads the record or trial or not, I've always found oral argument a good place to flush out whatever the court's misconception of the facts or law might be. For example, on a number of occasions I've seen a panel rather taken aback by a specific citation to the record of trial that rebuts the judges' apparent view of the facts and then make written notes on what appears to be a bench brief or some other sort of document they hold in common. Similarly, I suspect the court's questioning in oral argument on this case would have revealed its reliance on the Article 32, which counsel could have then addressed.