Friday, May 02, 2008

Two CAAF grants

CAAF yesterday granted review of the following issues in an Air Force case:

WHETHER THE TRIAL COUNSEL ENGAGED IN IMPROPER ARGUMENT WHEN HE ARGUED THAT APPELLANT DEMONSTRATED A PROPENSITY TO ENGAGE IN SEXUAL ASSAULT.

ASSUMING ARGUENDO THAT IT WAS NOT IMPROPER FOR TRIAL COUNSEL TO ARGUE THAT APPELLANT HAD THE PROPENSITY TO COMMIT SEXUAL ASSAULTS, WHETHER THE MILITARY JUDGE ERRED BY FAILING TO GIVE AN ADDITIONAL INSTRUCTION ON THE USE OF PROPENSITY EVIDENCE.

United States v. Burton, __ M.J. ___, No. 07-0848/AF (C.A.A.F. May 1, 2008) (order).

Here's a link to the Air Force Court's decision in the case.

The second granted case is from the Marine Corps. Here's the granted issue:

WHERE THE LOWER COURT FOUND A CONSTITUTIONAL VIOLATION, DID IT ERR WHEN IT FOUND THAT APPELLANT WAS NOT PREJUDICED WHEN HE WAS CONFINED FOR OVER SEVEN MONTHS BEYOND THE DATE HE SHOULD HAVE BEEN RELEASED UNDER THE CONVENING AUTHORITY'S UNAMBIGUOUS ACTION?

United States v. Burch, __ M.J. ___, No. 08-0092/MC (C.A.A.F. May 1, 2008) (order).

Unfortunately I won't have a chance to write about these grants tonight. If no one beats me to it, I'll post more over the weekend. But Burch is just as ugly as it sounds. In NMCCA's opinion, which is available here, the court first concludes that it must enforce the plain language of a convening authority's action, which suspended the remaining confinement in the case, but then held that for purposes of assessing prejudice from the government's failure to abide by that plain language, it could consider extrinsic evidence to conclude that the CA didn't really mean what he wrote. NMCCA maintains: "At first blush, our two-part analysis may appear internally inconsistent. This is not the case, however." United States v. Burch, No. NMCCA 200700047 (N-M. Ct. Crim. App. Sept. 13, 2007). CAAF's grant may presage a ruling that NMCCA was right the first time.

4 comments:

No Man said...

I just don't get this sentence from Burch. If there is no evidence of anything, how is there overwhelming evidence of something?

Further, there is no evidence in the record of any discussions, requests, or action relating to the appellant’s continued confinement between the 11 March 2006 action and the appellant’s eventual release from confinement on 20 October 2006. Based on a careful review of the entire record, it is evident that the overwhelming wealth of evidence indicates that, notwithstanding the plain language of the convening authority’s action, the convening authority did not intend to release the appellant from confinement prior to completion of his adjudged sentence in October 2006. We, therefore, find that the due process violation was harmless beyond a reasonable doubt.

Cloudesley Shovell said...

You are correct CAAFlog--Burch is awful. I think that CAAF will use Burch to clarify the rule that if the language of the action is clear, one does not go searching for an ambiguity outside the action. After they're done doing that, I hope they give NMCCA a good judicial smackdown.

I'd say more, but I fear I would descend into ranting and raving. Burch is shameful, and NMCCA should be ashamed of itself. You'd think they'd understand that if they're tired of seeing screw-ups in post-trial matters, they ought to hold CAs and SJAs to rigidly high standards, rather than stand the law on its head to rescue the CA and his SJA from their screw-up in this case.

Anonymous said...

NMCCA's logic leaves much to be desired. After concluding that error occurred, it then proceeds into an analysis of whether the error was harmless beyond a reasonable doubt. The flaw in NMCCA's reasoning is that it looks to the CA's intent in gauging the harm, where it should have been looking to the error itself. Once you direct your attention to the correct subject -- i.e., is the error harmless, then the answer should be a no-brainer.

Would Senior Judge Geiser consider it harmless if he were erroneously locked up in jail for 223 days, regardless of whether the CA had a very good reason and every intent to do so?

Oy vey.

Anonymous said...

A CCA again reinterpreting a CA's action. How hard is it to read what was written and act on it? Nearly two months after ordering Burch back into confinement the CA puts out the action suspending everything beyond 45 days, yet keeps him in confinement for an additional 7 months? And NMCCA is OK with it?

Ya know, there used to be a phrase that went something like "You made your bed, now lay in it." I guess now it would be rewritten by NMCCA to read "You made your bed, but don't worry, we rewashed your sheets and got you a new, thicker blanket, since you soiled your last one, and now you can sleep in comfort."

Between Tippit & Dowis who knows what CAAF will do. They've rescued hapless CA's before, and let others bury themselves in their own holes. I'd wager that by now they're getting a little tired of this from CA's and might come down on NMCCA a little.