Friday, July 18, 2008

New published AFCCA opinion

United States v. Jones, __ M.J. ___, No. S31164 (A.F. Ct. Crim. App. July 18, 2008).
Posted by Dwight Sullivan at 5:45 PM

3 comments:

Anonymous said...

Well our system of having a court of criminal appeals appeals dismissed a finding of guilt and lessened the sentence. No value here...

Fri Jul 18, 06:11:00 PM EDT
Anonymous said...

I think CAAFlog's retort is that CAAF would have basically done the same thing as AFCCA, thus no value was added.

In the aggregate, this claim is probably true. But there will always be a unique subclass of cases - perhaps like this one - where only the CCA's would have granted relief and CAAF simply defers to it, but where perhaps CAAF would not have granted relief on its own initiative.

Sat Jul 19, 05:19:00 AM EDT
Dwight Sullivan said...

One can wonder whether CAAF would have said the novel 134 spec failed to allege an offense. On the other hand, one can also wonder whether CAAF would have set aside the specification on preemption grounds. AFCCA rejects the argument that Article 123a preempts an Article 134 spec of wrongful misuse of a Bank of America "Pay by Phone" service by citing previous military appellate decisions holding that Article 123a didn't preemept theories of liability under Article 121. But since those earlier cases didn't deal with novel 134 specs, they wouldn't appear to address the preemption issue in this case,which -- as AFCCA notes -- is based on MCM ¶ 60.c(5)(a)'s provision "prohibit[ing] application of Article 134 to conduct covered by Articles 80 through 132." The previous application of Article 121 to conduct purportedly covered by Article 123s wouldn't seem to speak to that issue. So CAAF might have invalidated the novel 134 spec on a different basis than that relied upon by AFCCA -- or, indeed, it might have invalidated the spec on the same basis.

But, in any event, the relief in this case consisted of reducing the reduction in rank from a three grade bust to a one grade bust. That wouldn't seem to be terribly meaningful in light of the affirmed BCD -- though it is possible that it could result in some return of pay to SrA Jones, especially since the members didn't adjudge any confinement. So let's say that CAAF wouldn't have set aside the spec at issue and let's even assume that in some cosmic sense, setting aside the spec is a "better" outcome systemically than no setting aside the spec. Is it worth having five military appellate courts -- with all the additional expense, time, and inconvenience to the services -- instead of one to give the occasional punitively discharged servicemember a reduced bust in rank? That is ultimately a subjective policy judgment. My answer would be no.

Sat Jul 19, 08:54:00 AM EDT

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