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.