So much news, so many unanswered questions

Today's update of CAAF's online Daily Journal included quite a bit of news. The No Man has already posted below about the biggest story -- a writ appeal filed in the case of a civilian accompanying the forces who was court-martialed in Iraq.

In other news:

1. Government rolls over on "attempted drunk on duty" case. We previously noted the grant in United States v. Snyder, No. 07-0765/NA, which involved a question that would have befuddled even Colonel Winthrop: "WHETHER THE SPECIFICATION UNDER THE ADDITIONAL CHARGE STATES AN OFFENSE FOR ATTEMPTED DRUNK ON DUTY IN VIOLATION OF ARTICLE 80, UNIFORM CODE OF MILITARY JUSTICE (UCMJ)." Code 46 just made that case go away, conceding that the evidence wasn't legally sufficient to support the conviction. See United States v. Snyder, __ M.J. ___, No. 07-0765/NA (C.A.A.F. Sept. 18, 2008). CAAF accepted the concession, cancelled oral argument, set aside the finding of guilty to that offense and the sentence, and kicked the case back to NMCCA to either reassess the sentence or order a sentence rehearing. So some overeager Navy prosecutor, not happy with mere use and distribution of methamphetamine, had to tack on an attempted drunk on duty charge as well. The reward for that creativity is that two years and three months later, the case remains alive and will now surely kick around the appellate system for many more months until the adjudged bad-conduct discharge is finally executed.

2. Dossey appeal dismissed! I've been very critical of NMCCA's handling of the appeal in United States v. Dossey (and rightfully so). NMCCA first held 3-0 that it didn't have jurisdiction on an Article 62 appeal of a mistrial ruling. Then it reversed course and held 2-1 that it did. United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App. 2008). Then, despite the panel's reversal of itself, departure from established NMCCA precedent, and divided opinion, NMCCA denied en banc reconsideration. United States v. Dossey, NMCCA No. 200700537 (N-M. Ct. Crim. App. June 11, 2008) (en banc) (order). Worse yet, as we discussed here, it sought to justify its denial of en banc reconsideration by citing a Second Circuit opinion that actually indicated en banc rehearing was necessary because one of the court's judges disagreed with the panel opinion that departed from the court's precedent. But there was some hope to lessen the precedential value of NMCCA's dubious published opinion when a petition for grant of review was filed at CAAF on 12 June 2008. But on 17 September, CAAF granted the Government's motion to dismiss the petition, which also mooted out a defense motion to withdraw the petition. I have no idea what happened to result in the case's dismissal and I have yet to wring any info out of my sources. I'll fill you in when I find out.

3. Government writ appeal denied. We previous discussed Code 46's writ appeal seeking to force Judge Harty to enter a ruling on the record after he issued a ruling by e-mail. The Government wanted to appeal the underlying ruling. The need for extraordinary relief seemed to be substantially dulled, though, since the Government's separate Article 62 appeal was apparently timely filed even if measured from the date of the e-mailed ruling. NMCCA denied the Government's petition for extraordinary relief in a one-page order. Now CAAF has even more summarily denied the Government's writ appeal. United States v. Harty, __ M.J. ___, Misc. No. 08-8024/NA (C.A.A.F. Sept. 17, 2008).

4. A couple of grants. CAAF granted review of the following issue: "WHETHER THE MILITARY JUDGE ERRED BY PERMITTING THE CONVENING AUTHORITY TO WITHDRAW FROM HIS PRETRIAL AGREEMENT WITH APPELLANT DESPITE APPELLANT BEGINNING PERFORMANCE OF PROMISES CONTAINED IN THE AGREEMENT." United States v. Dean, __ M.J. ___, No. 08-0431/AR (C.A.A.F. Sept. 19, 2008). As seems increasingly typical with Army cases, I can't find any electronic trace of the CCA opinion. The other grant is a specified issue in a Navy case: "WHETHER IT WAS PLAIN ERROR FOR THE MILITARY JUDGE TO ADMIT AT SENTENCING A STIPULATION OF EXPERT TESTIMONY PERTAINING TO SEX OFFENDER TREATMENT IN MILITARY CORRECTIONAL FACILITIES WHERE THE EXPERT, WHO DID NOT PERSONALLY EVALUATE APPELLANT, OPINED GENERALLY ABOUT MINIMAL AND OPTIMAL TERMS OF CONFINEMENT FOR A PERSON DETECTED OF POSSESSING CHILD PORNOGRAPHY." United States v. Campos, __ M.J. ___, No. 08-0409/NA (C.A.A.F. Sept. 19, 2008). NMCCA's unpublished opinion in the case, which addressed the specified issue, is available here. United States v. Campos, No. NMCCA 200602523 (N-M. Ct. Crim. App. Jan. 17, 2008).

Did I miss anything of interest?