Grants galore

No, "Grants Galore" isn't a character in an Ian Fleming novel. Rather, it's a description of CAAF's daily journal for Friday, which was uploaded to the web this evening.

We've already noted Friday's grant in United States v. Sanders, No. 09-0013/AF. We learned today that CAAF also granted review with briefing in another two cases on Friday.

In United States v. Marshall, No. 08-0779/AR, the granted issue is: "WHETHER THE MILITARY JUDGE'S FINDING BY EXCEPTIONS AND SUBSTITUTIONS CREATED A MATERIAL FATAL VARIANCE IN CHARGE III AND ITS SPECIFICATION [ESCAPE FROM CUSTODY]."
ACCA's opinion in the case doesn't appear to be available online.

In United States v. Wiechmann, No. 09-0082/MC, the granted issue is: "WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO COUNSEL WHEN THE CONVENING AUTHORITY AND STAFF JUDGE ADVOCATE FAILED TO RECOGNIZE ONE OF HIS TWO DETAILED DEFENSE COUNSEL." Wiechmann is an unusually interesting case involving a CA's and SJA's initial refusal to give effect to the detailing of a highly respected Marine Corps Reserve judge advocate -- LtCol Jon Shelburne -- as a second detailed defense counsel in the case. While the command ultimately accepted LtCol Shelburne as LtCol Wiechmann's counsel, on appeal the defense sought to overturn the conviction because LtCol Wiechmann had been deprived of LtCol Shelburne's representation during part of the case's pretrial development. While NMCCA found that "the CA's initial refusal to recognize LtCol Shelburne as detailed defense counsel burdened his ability to represent the appellant pretrial," the court concluded that these limitations "were not so severe as to constitute a severance of the attorney-client relationship, nor did they rise to such a level as to deny the appellant due process." NMCCA's unpublished opinion in the case is available on its web site here. United States v. Wiechmann, No. NMCCA 200700593 (N-M. Ct. Crim. App. Aug. 14, 2008). (One interesting note is that pursuant to a PTA, the CA suspended all punishment in the case for 12 months. So unless the suspension was vacated, LtCol Wiechmann never served any time and won't be dismissed. But the fortuity of receiving a suspended dismissal made his case eligible for an appeal under Article 66 and further review under Article 67.)

On Friday, CAAF also granted review of three additional cases and summarily disposed of them.

In the highly publicized case of Staff Sergeant John Diamond, No. 08-0365/AR, CAAF on Friday granted review of this issue: "WHETHER THE NAMED CO-CONSPIRATOR, MICHELLE THEER, PAID APPELLANT'S CIVILIAN DEFNESE [sic] COUNSEL RETAINER AND, IF SO, WHETHER THIS CONFLICT OF INTEREST WAS DISCLOSED TO THE COURT." CAAF summarily remanded the case to ACCA for consideration of the granted issue. ACCA's original opinion in the case is reported at 65 M.J. 876.

In United States v. McPherson, No. 08-0651/AR, CAAF granted review of this issue: "WHETHER AN HONORABLE DISCHARAGE [sic] FROM THE UNITED STATES ARMY RESERVE WITH ACCOMPANYING ORDERS, EFFECTIVE AFTER SENTENCING BUT PRIOR TO ACTION BY THE CONVENING AUTHORITY, HAS THE EFFECT OF REMITTING THE BAD-CONDUCT DISCHARGE ADJUDGED AT THE APPELLANT'S COURT-MARTIAL AND LATER APPROVED BY THE CONVENING AUTHORITY. SEE STEELE v. VAN RIPER, 50 M.J. 89 (C.A.A.F. 1999)." CAAF summarily returned the record of trial to ACCA for it to consider the granted issue. ACCA's original opinion doesn't appear to be available online.

Finally, in United States v. Arthur, No. 09-0001/AR, CAAF granted review of this issue: "WHETHER THE APPROVED FORFEITURE OF $1,000.00 PAY PER MONTH FOR FOUR MONTHS AT A SPECIAL COURT-MARTIAL WAS ILLEGAL UNDER ARTICLE 19, UCMJ, WHEN APPELLANT WAS REDUCED TO E-1 AS PART OF THE SENTENCE." CAAF disposed of the issue itself by reducing the affirmed forfeitures to $867.00 pay per month for four months. ACCA's opinion in the case doesn't appear to be available online.