Sunday, June 29, 2008

Daily journal update

There was some significant CAAF daily journal activity last week that I didn't have the capacity to cover from the road. So I'm playing catch-up this weekend.

CAAF granted plenary review in two cases, both from the Air Force. In United States v. Miller, CAAF granted review of:


United States v. Miller, __ M.J. ___ No. 08-0307/AF (C.A.A.F. June 24, 2008). AFCCA's decision in the case is at 65 M.J. 845 (A.F. Ct. Crim. App. 2007).

The second granted issue is: "WHETHER THE MILITARY JUDGE ERRED BY ALLOWING EVIDENCE OF LEGAL PORNOGRAPHY AND SEXUAL ACTS WITH HIS WIFE." United States v. Goodin, __ M.J. ___, No. 08-0355/AF (C.A.A.F. June 24, 2008). A literal reading of that issue would mean that the sexual acts were with the military judge's wife. Presumably that would have led the military judge to recuse himself and the actual issue is whether the military judge should have allowed the admission of evidence about the accused's sexual acts with the accused's wife. AFCCA's unpublished decision in the case is available here. United States v. Goodin, No. ACM 36266 (A.F. Ct. Crim. App. Dec. 19, 2007).

Also this week CAAF continued its recent practice of deciding some cases on the basis of the briefs without holding oral argument. On 2 April 2008, CAAF granted review of "WHETHER THE MILITARY JUDGE FAILED TO ESTABLISH THAT APPELLANT TOOK ANY SUBSTANTIAL STEP BEYOND MERE PREPARATION TO CROSS THE CRIMINALITY THRESHOLD OF 'ATTEMPT,' THUS RENDERING THE PLEA OF GUILTY TO CHARGE II, SPECIFICATION 2, IMPROVIDENT." United States v. Rowe, __ M.J. ___, No. 07-0813/NA (C.A.A.F. Apr. 2, 2008). CAAF ordered the parties to file briefs. On 24 June 2008, which would have been quite soon after briefing was complete, CAAF resolved the case: "On further consideration of the granted issue, __ M.J. __ (C.A.A.F. April 2, 2008), and the briefs of the parties, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed." United States v. Rowe, __ M.J. ___, No. 07-0813/NA (C.A.A.F. June 24, 2008) (summary disposition).

And CAAF granted minor relief concerning the wording of a specification, but no relief as to sentence, on the basis of the petition for grant of review in United States v. Owens, __ M.J. ___, No. 08-0173/AR (C.A.A.F. June 24, 2008) (summary disposition).

CAAF also granted review of a Bartlett trailer, see United States v. Bartlett, No. 07-0636/AR, but ordered counsel not to brief it. United States v. Liriano, __ M.J. ___, No. 08-0225/AR (C.A.A.F. June 25, 2008).

The online daily journal is updated only through Wednesday, 25 June, so it's possible that this week we will learn of still more interesting daily journal developments from last week.


Anonymous said...

What was the dismissal of US v. Person about?

CAAFlog said...

1743 Anon,

I, too, would like someone with knowledge of Person to explain what happened.

Here's what we know from the public record. On 19 December 2006, NMCCA affirmed Petty Officer Person's conviction and sentence (which included LWOP with confinement in excess of 60 years suspended for 20 years). United States v. Person, No. NMCCA 200600076 (N-M. Ct. Crim. App. Dec. 19, 2006). More than 16 months later, a petition for grant of review was filed in his case. United States v. Person, __ M.J. ___, No. 08-0534/NA (C.A.A.F. May 8, 2008). And then on Monday, CAAF granted the government's motion to dismiss his petition. United States v. Person, __ M.J. ___, No. 08-0534/NA (C.A.A.F. June 23, 2008).

Based on that procedural history, the petition was probably dismissed as untimely. But, again, I invite those with actual knowledge to fill us in.

Anonymous said...

I wish CAAF would simply put the extra sentence (or words) in such summary dispositions explaining why.

CAAF is a court exercising supervisory powers over military courts. They should keep practioners informed of such matters that generally affect military practice. Dismissing a petiton as unitimely,if thats the case, has precedential value.

A plea to CAAF: Help us. one extra sentence in your summary dispostions, please.

Anonymous said...

But if Rodriguez is to decide the Bowles issue on timeliness, shouldn't they wait on Person or include Person in it's decision or is CAFF picking an arbitrary time that is too much? Person was 16 months and that's too long? CAAF has granted on far greater delays. I wish the would set a standard, ANY standard and stick to it.

Anonymous said...

Maybe by this summary disposition, CAAF is signalling its decision in Rodriguez. Tamez will still be good law when all is said and done. Rodriguez will just be a paper drill.

Anonymous said...

If CAAF drafted the issues in Miller, I'm not sure I'd trust the court with statutory construction. If the second issue was bad, then how about the first? Sounds like appellant was sending a purported child through the internet, as opposed to a video.

Anonymous said...

It's throw mama off the train a kiss...

Anonymous said...

Anon 0712: I don't follow, how is dismissing Person an indicator that CAAF will rule for Appellant in Rodriguez, or that Tamez is still good law? Please explain.

Anonymous said...

if caaf was going to change anything, it would have held this case as a rodriguez trailer - the chinese tea leaves say that this case was dismissed because there was no good cause under tamez

Anonymous said...

Anon 1250 - CAAF did not indicate that the case was dismissed for lack of jurisdiction - no doubt, it found the case untimely under Tamez.

Cloudesley Shovell said...

When CAAFlog first floated the idea of prohibiting anonymous comments, or otherwise regulating the comments, I opposed any change.

Wading through multiple "anonymous" comments, however, especially when several people are conversing, does get pretty confusing. Why don't some of you regular anonymous commenters just create a Google identity? You can do this anonymously via gmail. Works great. Don't cost nuthin'.

Alternatively, use a consistent pseudonym that you enter by clicking on the Name/URL option. It makes it easier for other readers to keep track of who's saying what.

If there's some interface problem between blogger and your gov't internet system that requires selecting the anonymous option, at least sign your posts with the witty pseudonym of your choice. There are plenty of dead flag officers to choose from!

Somedeadflagofficer said...

Looks to me as if the Air Force Appellate Defense Division could use some remedial training on how to draft issue statements.

John O'Connor said...


I agree with your point re anonymous posts wholeheartedly. While I support the notion of anonymous posting n the specific circumstances of this blog, pseudonymous posts are far better because then you can get a sense over time where a particular poster is coming from and, maybe more importantly, you can follow the commentary in a long thread by being able to figure out when two anonymous posts are by the same person as opposed to two unrelated posts.