Friday, October 17, 2008

CAAF disposes of third orally argued case

At this rate, CAAF will be done issuing this term's opinions before it's heard all of the oral arguments. Just one month into oral argument season, CAAF today decided a third argued case. In United States v. Brown, __ M.J. ___, No. 08-0260/AF (C.A.A.F. June 17, 2008), CAAF specified this issue:

WHETHER THE EVIDENCE ON THE ELEMENT OF SERVICE-DISCREDITING CONDUCT WAS LEGALLY SUFFICIENT WHEN: (1) THE SEXUALLY EXPLICIT CONTENT AT ISSUE INVOLVED VIRTUAL MINORS; (2) THE IMAGES OF VIRTUAL MINORS WERE VIEWED ON APPELLANT'S PRIVATELY-OWNED COMPUTER, AND (3) APPELLANT'S ACTIVITY WAS KNOWN ONLY TO LAW ENFORCEMENT PERSONNEL INVOLVED IN THE INVESTIGATION. SEE U.S. v. MASON, 60 M.J. 15 (2004), AND U.S. v. O'CONNOR, 58 M.J. 450 (2003).
Today, two days after hearing oral argument in the case, CAAF vacated the order granting review as improvidently granted. United States v. Brown, __ M.J. ___, No. 08-0260/AF (C.A.A.F. Oct. 17, 2008). In Supreme Court practice parlance, CAAF DIGged it.

CAAF observed:

On examination of the record, we have determined that the granted issue was based on an incorrect premise, namely that the evidence in the record of the sexually explicit content at issue involved only virtual minors. The record reveals, and the parties agree, that the record includes testimony that the sexually explicit content at issue includes depictions of actual minors.

Under these circumstances, the issue granted by this Court cannot be answered on the facts presented in this case. Upon further consideration of Appellant's petition for review, we conclude that the record does not establish good cause for review . . . .

3 comments:

presley o'bannon said...

CAAFlog,

You have previously mentioned that CAAF's plenary review of a record when deciding to grant a petition is the "gold standard" of review.

If that is the case then how could something like this have happened? Wouldn't the central staff have verified what was in the record before the petition was granted?

I would be curious if anyone could shed some light on how the internal review process works when CAAF is deciding whether or not to grant a petition.

CAAFlog said...

Lieutenant O'Bannon, as alluded to in the post, even the Supreme Court sometimes dismisses cases as improvidently granted. Very occasionally granting review of a case that doesn't turn out to be quite what it seems doesn't strike me as a sign of institutional weakness.

But here's an interesting note: according to the order granting review, the issue in Brown was specified by the Court. That usually means that the issue wasn't raised by any party but rather the court itself discovered the issue and told the parties to brief it. Of course, that is something that never would happen at the Supreme Court.

Gene Fidell has been a long-standing critic of the practice of specifying issues for review. I'd love to see his reaction to this latest development. In fact, Gene, if we could impose on you to write something up, I'll start a new thread with it in the main section of CAAFlog rather than relegating it to the comments.

Gene Fidell said...

I'm game.