Wednesday, October 29, 2008

Drawing a new Mendoza line: corrected CA actions vs. new CA actions

CAAF's docket continues to rocket. On Friday, CAAF cleaned up a case that appears to be a Gogue trailer. United States v. Owens, __ M.J. ___, No. 7-0856/AR [sic] (C.A.A.F. Oct. 24, 2008) (summary disposition). On Tuesday, CAAF issued its second opinion of the court for the term.

Judge Stucky wrote for a unanimous court, overturning a published NMCCA decision dealing with post-trial processing on remand. United States v. Mendoza, __ M.J. ___, No. 08-0246/NA (C.A.A.F. Oct. 28, 2008). The issue is whether upon remand for a new action, the CA must obtain a new recommendation from the SJA and provide the defense with an opportunity to make R.C.M. 1105 and 1106 submissions before taking the new action.

CAAF drew a distinction between a a corrected action and a new action. The former doesn't require a new SJAR and opportunity for defense submissions while the latter does, held CAAF. (Who nailed that outcome when we first discussed Mendoza here? Beloved CAAFlog commentator JO'C.)

In this case, NMCCA's remand order didn't authorize a corrected action but required a new one. CAAF held that the CA erred by taking that new action without a new SJAR or opportunity for defense submissions. CAAF remanded the case to NMCCA to determine whether Petty Officer Mendoza was prejudiced by that omission.

6 comments:

Anonymous said...

Any bets on whether the CCA will find prejudice?

Another hollow victory for the defense.

Charlie Kaufman said...

So, while a new SJAR is required any time there is a new CA’s action, the failure to provide one is testable for prejudice? At first blush, that seems an odd outcome given the importance of the clemency process in the mil jus system (I’m assuming an accused would get to submit new matters under 1105(c) if a new SJAR is completed). I guess an Appellant should provide some (any?) evidence that he would have submitted in response to the new SJAR, and then, what, the CCA has to send it back? Seems that any other scenario would place the CCA’s in the shoes/mind of the CA, and that becomes transcendentally tricky, unless the CCA’s have some sort of portal into the minds of CA’s, a la “Being John Malcovich.”

Mario Mendoza said...

I resent the use of my name in this setting. The line drawn by this court will in reality fall well below this opinion because the CCAs may very well invariably find no prejudice in the lack of an opportunity to submit matters to the CA. I, on the other hand, have always come in well above the line set using my name as my career batting average (.215) reflects.

Dew_Process said...

No prejudice was alleged at the CCA, that was the problem, which CAAF discussed in a footnote - they alleged prejudice at the CAAF, which is why they remanded it to address that issue.

I interpret the CAAF decision to be simply, if there's a mandatory "duty" created by statute [Art. 60], absent an affirmative waiver by the Accused, the SJAR and RoT must be served on the Accused - absent that, it's plain error.

Anonymous said...

Another big win for 46. That is 0-2.

Ed White said...

The Court's decision is certainly reasonable, but it is not required by the rule, and the Court does not explain WHY it should be (or is) the case that a new CA's action requires the preparation of a new SJAR/LOR. The Rule requires an SJAR/LOR, but does not say that the SJAR/LOR is only good for a limited period of time. Likewise, the rule says the CA must consider the SJAR/LOR before taking action, and that would include a new action -- but why isn't it enough that the CA consider the existing SJAR/LOR? I bet the CA in this case said in his action that he had considered the original SJAR/LOR before taking action.

If the SJAR/LOR is "stale," then the whole purpose behind requiring an SJAR/LOR is defeated, and in a sense, the rule is not complied with unless you have a new one. By contrast, if the original SJAR/LOR is not (shown to be) "stale", then the purpose of the rule is not undermined by relying on it, and it is not clear why it would be necessary to have a new one.

There are many good arguments for establishing a bright-line rule that a new CA's Action requires a new SJAR/LOR. The Rule, however, does not say that a new SJAR is required when a new CA' Action is taken; CAAF simply creates that requirement here without acknoweldging that was what it was doing, let alone explaining why that was the required result, the right result, or a good result.