New CAAF grant

CAAF yesterday granted review in another in the military justice system's seemingly endless string of child pornography cases. United States v. Forney, __ M.J. ___, No. 05-0647/NA (C.A.A.F. May 7, 2008) (order). This is actually the second time that the Forney case will be before CAAF. See United States v. Forney, 64 M.J. 177 (C.A.A.F. 2006) (mem.) (remanding case to NMCCA for further consideration in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Cendejas, 62 M.J. 334 (C.A.A.F. 2006)).

The newly granted issue in Forney is: "WHETHER APPELLANT'S ARTICLE 133 CONVICTION CAN BE SUSTAINED EVEN THOUGH HE PLEADED NOT GUILTY AND THE SPECIFICATION ON WHICH HE WAS TRIED EXPRESSLY RESTED ON A STATUTE THAT THE SUPREME COURT HAS FOUND UNCONSTITUTIONAL."

NMCCA's opinion on remand is available here. United States v. Forney, No. NMCCA 200200462 (N-M. Ct. Crim. App. Aug. 30, 2007). In that opinion, to remedy the lack of timely appeal, NMCCA retroactively set aside 12 months of confinement that had already been served while acknowledging that "[b]ecause the appellant has served his full term of confinement, reduction of the confinement or confinement credits would afford him no meaningful relief unless it had a significant impact upon collected forfeitures." Id., slip op. at 13.