Code 46 seeks more time for possible certification of fascinating but inaccessible NMCCA opinion

The first hint I had that there was a case called United States v. Burk was an interesting CAAF daily journal entry that showed up online today: "Notice is hereby given that a motion for enlargement of time to file a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed by the United States under Rule 30 on this date." United States v. Burk, __ M.J. ___, No. 09-5001/MC (C.A.A.F. March 4, 2009). What NMCCA case had Code 46 so worked up, I wondered, that it was seeking more time to try to get VADM MacDonald to certify it to CAAF? So I went looking for the opinion. But it wasn't on NMCCA's web site. Nor was it on the formerly comprehensive but now almost useless Navy Knowledge Online. LEXIS? Nope, not there either. Now NMCCA deserves huge kudos for putting its oral arguments online. But why does it make so many of its opinions inaccessible? The Air Force and Coast Guard CCAs put all their opinions online. I believe that ACCA does now, as well, with its recent addition of summary disposition opinion tabs to its web site. NMCCA, please, please, please follow suit.

NMCCA's stinginess with its opinions becomes even more frustrating because when I finally laid my hands on a copy of Burk (I know people), it turned out that there was a PREVIOUS NMCCA opinion in Burk that I still don't have. But what I have read is fascinating.

Here's a copy of NMCCA's latest Burk opinion. United States v. Burk, No. NMCCA 200800146 (N-M. Ct. Crim. App. Feb. 12, 2009) (per curiam). But the opinion starts out by telling us that the "Government requested en banc reconsideration of an earlier Panel decision in this case." Id., slip op. at 1. When did that earlier decision come out? I have no idea; NMCCA doesn't tell us. Apparently in that earlier opinion, NMCCA held that the military judge (the Baltimore Orioles' second baseman) erred by denying defense challenges to two members. And apparently NMCCA erred by believing that both of those members actually served on the court-martial while, in reality, one had been peremptorily bounced by the defense, thus eliminating any claim of error pursuant to the despicable R.C.M. 912(f)(2) "Wiesen fix." See id. at 1 n.1. NMCCA refreshingly acknowledges its mistake. Id. BUT, NMCCA goes on to reverse the findings and sentence based the military judge's other erroneous challenge denial.

One of the members, a staff sergeant, "responded in group voir dire that she could not state with absolute certainty that she presumed the appellant to be innocent of the charges against him." Id., slip op. at 3. During individual voir dire, the trial counsel got her to proclaim herself "neutral" and to presume innocence. Id. The defense counsel then elicited her statement that, in NMCCA's words, "a Marine should testify when he says he is not guilty." She said, "If it would be me, I'd want people to know I'm innocent and not leave any doubt in anyone's mind I didn't do something." Id. She did say, though, that that thought wouldn't be in the back of her mind during deliberations. Id. The military judge, the Baltimore Orioles' second baseman, then elicited her statement that she understood the presumption of innocence and the accused's right not to testify. He also elicited her statement that she wouldn't hold it against Sgt Burk if he didn't testify.

The defense challenged the staff sergeant for cause. The military judge rejected an implied bias challenge. NMCCA observed, however, that the military judge "omitted any discussion of demeanor." Id., slip op. at 4. Nor did the military judge mention the liberal grant mandate. The military judge, the Baltimore Orioles' second baseman, denied the challenge for cause. E4, ruled NMCCA. (I know, you saw that one coming all the way down Eutaw Street.) (The defense used its peremptory against another member who made statements somewhat similar to those of the staff sergeant; the military judge had denied a challenge for cause against that member as well. Apparently the error in the original MIA NMCCA opinion was holding that the military judge had erred by denying the challenge for cause against that member as well.)

NMCCA concluded that in this he-said/she-said rape case: "Because one of the seated panel members professed a belief that one accused of a crime should testify, our own perception of the fairness, and the apparent fairness, of the proceedings is significantly undermined, and we believe that the general public would have a like perception." Id., slip op. at 4-5.

Of course, the general public will never hear of this case. Nor will the military justice community, due to the NMCCA opinion's inaccessibility. Unless, of course, Code 46 gets its extension of time and convinces VADM MacDonald to certify it.