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Thursday, June 19, 2008
Government files notice of appeal in Chessani
AP is reporting that the government has filed a notice of appeal in Chessani. But that doesn't necessarily mean the government will actually pursue an Article 62 appeal. Under JAGINST 5810.2A, Military Justice Regulations at encl. 1 (17 Sep 1993), once the notice of appeal is filed and the record is forwarded to Code 46, "The Director, Appellate Government Division, as the designated representative of the Government under R.C.M. 908, shall decide whether the appeal shall be filed." So Col Puleo will decide whether to challenge Col Folsom's ruling dismissing the charges without prejudice due to unlawful command influence.
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9 comments:
Here is a link to the notice:
http://michaelsavage.wnd.com/index.php?fa=PAGE.view&pageId=784
Of course, CAAFlog is right, it's just a notice given at the trial level, the real battle will be decided by the appellate guys.
They are under a short time limit however, how long is it under NMCCA Rules of Practice and Procedure ? Their website is hard to navigate, I can't seem to find it.
My bad, here is the tagged link
-TC
Is motion to dismiss -- without prejudice -- under these circumstances even appealable under Art. 62?
Oh, no. I hope there will be no reason for the government to complain about some sort of time limit or deadline here. Maybe Parker v. Bowles applies to this situation, too.
Would be hard for the government to complain since they filed notice timely.
But is the judge's dismissal without prejudice really "an order or ruling...which terminates the proceedings"? At most, the order would seem merely to delay the proceedings as long as it might take to get a new referral (which probably could get done faster than a government appeal).
Ask CAAF, after Lopez de Victoria it seems that there is little adherence to the 62 appeal. If you look at the effects test it would seem to.
Read the order. It is certainly the Government's intent to file a 62 appeal. Although your points are indeed valid, my guess is the judges dismissal will be reviewed.
They filed their notice of intent within the 72 hours, which really means nothing since it's at the trial level. We'll see what the appellate division decides to do. My question was what was the time limit to file there actual motion, if they decide to do it? Is it the same as the other courts?
I suppose if Dossey and Wuterich are any indication, NMCCA would have no problem at all in finding jurisdiction.
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