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.