Monday, April 21, 2008

New CAAF opinion: United States v. Mackie

We previously noted that the Judge Advocate General of the Air Force certified five cases to CAAF from July to December 2007. CAAF has already decided three of those cases, affirming the Air Force Court's ruling in each. CAAF's opinion in United States v. Perez -- a short per curiam issued just 81 days after the oral argument -- appeared to reflect some disagreement with the Judge Advocate General of the Air Force as to whether the case was worthy of certification. See United States v. Perez, 66 M.J. 164 (C.A.A.F. 2008) (per curiam).

Now comes United States v. Mackie, __ M.J. ___, No. 08-5005/AF (C.A.A.F. Apr. 21, 2008) (per curiam) -- another Air Force certified issue case. CAAF didn't even find the case worthy of oral argument before affirming it in another short per curiam opinion.

Mackie affirms the Air Force Court's ruling, 65 M.J. 762 (A.F. Ct. Crim. App. 2007), that the military judge erred by concluding that A1C Mackie had received an adequate substitute for a 706 board based on opinions rendered by an Air Force clinical psychologist who had seen Mackie "twice by appointment and once for a brief walk-in conversation, never conducted a forensic examination or participated in a sanity board, and was unaware of [Mackie's] claimed memory losses and blackouts." Mackie, No. 08-5005/AF, slip op. at 3. As CAAF observed, the psychologist "admitted he had not conducted a forensic examination of [Mackie] or spent much time with him, and that he was unfamiliar with R.C.M. 706 rules and
standards." Id., slip op. at 6. The psychologist did opine that Mackie "was capable of standing trial," but the psychologist "could not opine on whether [Mackie] understood the nature and quality of his actions at the time the alleged criminal conduct occurred, as required by English, 47 M.J. at 218-19, and R.C.M. 706(c)(2)(C)." Id.

The upshot was not merely a slam dunk affirmance, but an off-the-glass, one-handed windmill slam dunk of an affirmance. Sprite might have to retroactively strip Dwight Howard of his 2008 Slam Dunk Contest title and award it to Mackie instead.


No Man said...

The AF Judge Advocate should just be happy she didn't have to take her certified issue to NMCCA (or at least certain panels of NMCCA). That court may have made comments about the AFJAG's competence and whether raising such issues violated the AFJAG's ethical obligations. If any NMCCA judge wants to counter that, I would be glad to hear your response. However, the practice of certain NMCCA judges scolding only one side of the bar, the defense, for arguments they make deserves comment-and in my opinion negative comment. I find that practice both not in line with rules governing the Art. III judiciary, which I know NMCCA is not, and just lacking in civility. This case just shows that either side can raise arguments, totally within the bounds of the ethical practice of the law, but that are ultimately disposed of quite easily by the judiciary. The end result does not mean that in raising the issue anything improper occurred.

In any event, the more I think about that appellate process proposal, the more eliminating the CCAs grows on me.

Anonymous said...

Frivolous certification. Maybe eliminate the Judge Advocate Generals along with the CCAs.

Anonymous said...

Isn't certification supposed to be for issues of system-wide importance, as opposed to for use whenever the government loses?

Cloudesley Shovell said...

Anon at 9:56--

There are only three statutory ways to get a case before CAAF. First, death penalty case. Second, certification by one of the service JAGs. Third, petition by the accused.

The only way for the Gov't to appeal an adverse decision by a CCA is to certify to CAAF. In fact, if the gov't wants to, it can certify a case where the gov't prevailed at the CCA. There is no limitation.

As a practical matter, the gov't typically does not certify cases unless there are important issues at stake. A major reason would be to protect the JAG's reputation before CAAF. If the gov't deserved to lose at the CCA, there probably won't be any certification. If, on the other hand, it's an important or hotly contested, or original issue, certification is more likely. Thus, although there is no rule against certifying every single case, as a practical matter, it is not done.

CAAF can also drop hints, as CAAFlog has pointed out, that the gov't should not have pursued a particular case. None of the recent cases, nor any in CAAF's history, I am sure, ever breathe a word of actual criticism to a JAG for certifying an issue, since it is the JAG's absolute right.

I also agree with the other commenter that CCA judges may on occasion use unjudicious language about issues raised. The accused has an appeal as of right. Deal with it. That being said, cluttering a brief with shotgun cut-n-paste issues can detract from stronger arguments.

Anonymous said...

Re certain NMCCA judges...I concur their language has been rude and unprofessional in the past to the point of embarrassing which is indicative of not placing military justice personnel on the bench. Just because someone is a great SJA does not mean they will make a great judge, trial or appellate. And No Man, the judges to which (I believe) you refer are no longer at NMCCA...