CAAF releases Wuterich opinion

CAAF has released its opinion in United States v. Wuterich. It's available here. United States v. Wuterich, __ M.J. ___, No. 08-6006/MC (C.A.A.F. Nov. 17, 2008).

CAAF vacated NMCCA's opinion, holding that NMCCA erred by holding the SSgt Wuterich had no standing to participate in the appeal. CAAF proceeded to rule directly on the substantive issues before the court. It held that an order quashing a subpoena is an appealable order under Article 62, though it held that the liberal construction mandate of the federal civilian government appeals statute doesn't apply to Article 62 appeals.

The court proceeded to hold that the military judge abused his discretion by quashing the government's subpoena to CBS News for outtakes of SSgt Wuterich's interview with 60 Minutes correspondent Scott Pelley without first reviewing the outtakes in camera.

CAAF reserved judgment on whether a newsgatherer privilege applies in the military justice system, but held that such a privilege wouldn't preclude an in camera review of the outtakes.

The court remanded the case for the trial judge to order production of the outtakes and to conduct such an in camera review.

Chief Judge Effron wrote for the majority, joined by Judges Baker and Stucky. Judge Ryan wrote a dissent in which Judge Erdmann joined. The dissenters concluded that Article 62 did not provide a CCA with jurisdiction to hear an appeal of an order quashing a subpoena because such an order does not exclude evidence.

[DISCLAIMER: I am one of SSgt Wuterich's appellate defense counsel.]