The Schweitzer and Ashby grants

As we previously noted, the Ashby case is being handled by a special CAAF panel consisting of former Chief Judges Everett, Cox, and Gierke, along with Acting Chief Judge Erdmann and Judge Stucky. We noted here the probable reasons why Judges Baker and Ryan recused themselves from the case, though the reasons for Chief Judge Effron's recusal aren't obvious.

Friday's daily journal entries, which were posted online today, let us know that the same special panel is also considering the Schweitzer case.

That special panel granted review of both cases on Friday, granting a whopping 13 issues between the two cases. Here are the granted issues in United States v. Schweitzer, No. 08-0746/MC:

WHETHER APPELLANT, BY PLEADING GUILTY, WAIVED HIS RIGHT TO AN UNBIASED AND IMPARTIAL CONVENING AUTHORITY; ASSUMING THERE WAS NO WAIVER, WHETHER THE CONVENING AUTHORITY WAS DISQUALIFIED DUE TO HIS INVOLVEMENT IN THE INVESTIGATION INTO THE MISHAP, HIS ROLE IN IDENTIFYING THE ORIGINAL CHARGES, AND THE FACT THAT HE TESTIFIED FOR OVER TWO HOURS DURING THE HEARING OF PRETRIAL MOTIONS AS TO MATTERS WHICH CALLED INTO QUESTION HIS CONTINUED PARTICIPATION IN APPELLANT'S CASE.

WHETHER A GUILTY PLEA TO THE OFFENSES OF ENGAGING IN CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN THROUGH CONSPIRACY TO OBSTRUCT JUSTICE AND OBSTRUCTION OF JUSTICE IS PROVIDENT WHEN THE "CRIMINAL PROCEEDING" IN ISSUE IS A FOREIGN CRIMINAL INVESTIGATION.

WHETHER IN UNITED STATES v. ALLENDE, 66 M.J. 142 (C.A.A.F. 2008), THIS COURT SHIFTED THE BURDEN OF PROVING HARMLESSNESS BEYOND A REASONABLE DOUBT TO APPELLANTS CLAIMING UNREASONABLE DELAY DURING THEIR ARTICLE 66(c), UNIFORM CODE OF MILITARY JUSTICE (UCMJ), REVIEW; IF SO, DOES ALLENDE'S BURDEN SHIFTING VIOLATE THE CONSTITUTION AND, IF SO, MUST AN APPELLANT RECEIVE MEANINGFUL RELIEF WHERE THE GOVERNMENT FAILED TO REBUT INFORMATION PROVIDED BY APPELLANT AS TO HIS EFFORTS TO PROCURE EMPLOYMENT COMMENSURATE WITH HIS EDUCATION AND JOB EXPERIENCE. IF ALLENDE'S BURDEN SHIFTING DOES NOT VIOLATE THE CONSTITUTION, DID THE LOWER COURT ERR IN FINDING THAT APPELLANT'S PROOF AS TO HIS EFFORTS TO PROCURE EMPLOYMENT COMMENSURATE WITH HIS EDUCATION AND JOB EXPERIENCE WAS INSUFFICIENT BECAUSE HE COULD NOT PRODUCE LETTERS THAT AFFIRMATIVELY STATED THAT HE WAS NOT HIRED BECAUSE HE DID NOT HAVE A DD-214.

WHETHER THE LOWER COURT ABUSED ITS DISCRETION BY FAILING TO GRANT RELIEF ON SENTENCING FOR ITS SELF-ADMITTED "GROSS NEGLIGENCE" IN FAILING TO PROVIDE APPELLANT AN EXPEDITIOUS ARTICLE 66(c), UCMJ, REVIEW, PARTICULARLY AS TO THE 33 MONTHS THAT ELAPSED PENDING COURT ACTION ON APPELLANT'S MOTION FOR ORAL ARGUMENT.

NMCCA's unpublished opinion in the case is available here. United States v. Schweitzer, No. NMCCA 200000755 (N-M. Ct. Crim. App. May 10, 2007).

Here are the NINE granted issues in Ashby:

WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT A CONVICTION UNDER ARTICLE 133, UNIFORM CODE OF MILITARY JUSTICE (UCMJ), FOR OBSTRUCTION OF JUSTICE OR CONSPIRACY TO OBSTRUCT JUSTICE.

WHETHER THE LOWER COURT ERRED IN AFFIRMING THE MILITARY JUDGE'S DECISION TO EXPAND THE TERM "CRIMINAL PROCEEDINGS" TO INCLUDE OBSTRUCTION OF FOREIGN CRIMINAL PROCEEDINGS.

WHETHER THE LOWER COURT ERRED IN AFFIRMING THE MILITARY JUDGE'S DECISION TO PERMIT FAMILIES OF THE VICTIMS OF THE GONDOLA CRASH TO TESTIFY ON SENTENCING.

WHETHER THE LOWER COURT ERRED IN SUMMARILY DISMISSING APPELLANT'S ARGUMENT THAT THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE MOTION FOR A MISTRIAL BASED ON THE TRIAL COUNSEL'S COMMENTS REFERENCING (1) APPELLANT'S INVOCATION OF HIS RIGHT TO REMAIN SILENT TO ITALIAN AUTHORITIES; AND (2) HIS GENERAL RIGHT TO REMAIN SILENT WITH RESPECT TO NOT DISCLOSING INFORMATION ABOUT THE VIDEOTAPE.

WHETHER THE LOWER COURT ABUSED ITS DISCRETION IN NOT FINDING THAT A SENTENCE WHICH INCLUDED SIX MONTHS OF CONFINEMENT AND AN APPROVED DISMISSAL WAS INAPPROPRIATELY SEVERE.

WHETHER THE LOWER COURT ERRED IN SUMMARILY DISMISSING APPELLANT'S ARGUMENT THAT THE DESTRUCTION OF THE VIDEOTAPE HAD NO EFFECT ON THE ADMINISTRATION OF JUSTICE BECAUSE IT CONTAINED NO MATERIAL EVIDENCE.

WHETHER APPELLANT'S DUE PROCESS RIGHTS HAVE BEEN VIOLATED BY THE UNTIMELY POST-TRIAL PROCESSING AND APPELLATE REVIEW OF HIS COURT-MARTIAL.

WHETHER THE LOWER COURT ERRED IN FINDING (1) THAT APPELLANT'S CASE WAS NOT TAINTED BY ACTUAL OR APPARENT UNLAWFUL COMMAND INFLUENCE; AND (2) THAT LTGEN PACE WAS NOT DISQUALIFIED TO ACT AS CONVENING AUTHORITY BY VIRTUE OF BEING A TYPE 2 AND TYPE 3 ACCUSER.

WHETHER THE LOWER COURT ERRED IN FINDING THAT THE CONVENING AUTHORITY DID NOT ABUSE HIS DISCRETION IN FAILING TO WITHDRAW THE ARTICLE 133, UCMJ, CHARGE FROM REFERRAL TO A GENERAL COURT-MARTIAL ONCE APPELLANT WAS ACQUITTED OF THE ORIGINAL CHARGES.

NMCCA's unpublished opinion in the case is available here. United States v. Ashby, No. NMCCA 200000250 (N-M. Ct. Crim. App. June 27, 2007).

In both cases, CAAF gave each party the option of resting on the briefing from the supp stage. It's my understanding that regardless of whether the parties file new briefs, the case will likely be argued this term, possibly in a sitting added after the last scheduled hearing date of 6 May.