Two CAAF opinions

CAAF issued two divided opinions today. In United States v. Ortiz, __ M.J. ___, No. 07-0555/AR (C.A.A.F. May 30, 2008), Judge Ryan wrote for a four-judge majority holding that the military judge violated the Sixth Amendment by ordering the courtroom cleared while the 11-year-old alleged victim testified without making the findings necessary to warrant closing the proceedings to the public. Judge Stucky dissented.

In United States v. Melson, __ M.J. ___, 08-5003/AF (C.A.A.F. May 30, 2008), Judge Erdmann wrote for a three-judge majority holding that the Air Force Court erred by finding IAC without first obtaining and considering a declaration from the trial defense counsel. (Appellate government counsel offered such an affidavit in a reconsideration petition after AFCCA ruled; AFCCA declined to receive it.) Judge Stucky, joined by Judge Ryan, dissented. Melson couldn't be more inside baseball unless it had been argued at a Project Outreach in Cooperstown. That said, I find it fascinating and will explore it further over the weekend. The almost certain upshot of the opinion will be bifurcated litigation of IAC claims, contrary to appellate courts' normal abhorrence of "piecemeal litigation."