Saturday, June 21, 2008

Compare Wuterich with Chessani

Here's one more quick thought about Wuterich before I run off to my daughter's swim meet. (I'll have at least one more post about Wuterich sometime after I get back.) In United States v. Chessani, No. NMCCA 200800299 (N-M. Ct. Crim. App. June 10, 2008), NMCCA held that discovery disputes weren't the appropriate subject of interlocutory challenges by the defense. Ten days later, in United States v. Wuterich, __ M.J. ___, No. NMCCA 200800183 (N-M. Ct. Crim. App. June 20, 2008) -- coincidentally another case arising from the Haditha incident -- NMCCA held that the government could use an interlocutory appeal to challenge the military judge's resolution of a discovery dispute.

1 comment:

John O'Connor said...

As I posted below, I'm not saying Wuterich is correct, but I don't think it's necessarily inconsistent to treat the government and defense differently in those two situations. We don't want the government being able to appeal post-trial, so its only chance to appeal is in an interlocutory manner. The accused has the ability to appeal post-verdict, so the government and defense are not similarly situated. Again, I'm not saying the government actually has the ability to take an Article 62 appeal on a motion to quash (and cvertainly not in all circumstances) but it wouldn't be inconsistent if it does and the defense doesn't.