Monday, July 06, 2009

AFCCA denies recon and recon en banc in Nerad

We've previously discussed (here and here) AFCCA's opinion in United States v. Nerad, 67 M.J. 748 (A.F. Ct. Crim. App. 2009), holding that the Courts of Criminal Appeals are authorized to set aside a legally and factually sufficient but unjust conviction. AFCCA today issue this order denying the Government's motions for reconsideration, reconsideration en banc, and oral argument. United States v. Nerad, No. ACM 36994 (A.F. Ct. Crim. App. July 6, 2009) (order).

[DISCLAIMER: I entered an appearance for the defense in the case last week.]


Anonymous said...

Judicial nullification happens all the time. The problem is you're not supposed to say that you're doing it.

But this is just the latest monstrosity arising out of the CCAs. Hopefully someone on the Hill is making a record of REALLY DUMB STUFF (tm) that comes out of the "intermediate appellate courts" in order to (1) eliminate them, (2) consolidate them or (3) use something like ALJ's, Article I appointees, or anyone but (the majority of) these guys.

Cloudesley Shovell said...

One can only assume that a JAG certification is being prepared in this case, giving CAAF another chance to consider the scope of the CCA's Art. 66 powers, and what (if any) limits Art. 59(a) places upon those powers. It will be interesting to see what CAAF does with the case, assuming the case gets certified.

The real issue, of course, is prosecutorial discretion--this was really a stealing military property case, not a sexual misconduct case. I suspect there's general agreement on that point.

Whether Art. 66(c) permits a CCA to substitute its judgment for that of both Congress and the prosecutor is another question. On that point, I think AFCCA got it wrong. If "this law is stupid" were enough to toss convictions, most of the US Code would be unenforcable.