Monday, November 17, 2008

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.]


OyezOyez said...

Only when five lawyers get together can you have nearly 70 pages on what 'exclude' means. ;-)

John O'Connor said...

I actually buy the majority's conception of its jurisdiction, in that it can extend to an order quashing a subpoena, but in practice I don't think there can be jurisdiction here. When the government doesn't know what's on the outtakes, I don't see how it can make the certification that this evidence is "substantial proof of a fact material in the proceeding."

Dew_Process said...

I tend to agree to a point with JO'C's point - a subpoena duces tecum, to be "proper" must be directed to specific, known evidence. That certainly does not appear to be the case here. But, then, under Art. 46, are you elevating form over substance?

A better approach may have been to depose the camera person, to first get an idea of what's on the out-takes, then you could make the necessary factual showing for the subpoena.

There's actually a good discussion of the gov't subpoenaing audio tapes without knowing what's on them, in U.S. v. Gen. Noriega's pretrial litigation, 764 F.Supp. 1480 (S.D. Fla. 1991).

I tend to agree with the Dissent though, since this was an Article 62, appeal - this wasn't excluding any "evidence." Would they grant a Writ if it was the Defense whose subpoena had been quashed????

But, the NMCCA's decision that Wuterich had no standing, when he is the real party in interest, was bone-headed.

John O'Connor said...

My point isn't that the unknown nature of the evidence mans the subpoena should be quashed. My point is directed at Rule 62, and my doubts that the government can meet its burden for an interlocutory appeal if it doesn't know what's on the tapes.

Dew_Process said...

JO'C - ah, with that explanation, I agree. I don't see how the government can establish that their appeal is proper under Article 61(a)(1)(B).