What does CAAF cite?

For a lecture I gave at Friday's Judge Advocates Association/CAAF appellate advocacy symposium, I thought it would be interesting to look at what CAAF cites in its opinions.

I surveyed 20% of CAAF's opinions from last term and counted every citation of authority. (Each citation of authority was counted once per case. So, for example, if Moreno was cited 10 times each in 2 opinions, it would be counted twice.)

Here are the top five kinds of authority that CAAF cited with the percentage of all cites that fall within that particular category:

1. CAAF/CMA opinions (42%)
2. Supreme Court opinions (19%)
3. Article III Courts of Appeals opinions (15%)
4. CCA/CMR opinions (5%)
5. UCMJ articles (5%)

When you throw in a few stray judicial opinions from other sources, 82% of all citations of authority in the surveyed cases were case law. And R.C.M.s, M.R.E.s, and Part IV of the MCM didn't crack the top five (though M.R.E.s were the sixth most cited kind of authority and R.C.M.s were the seventh most cited kind of authority).

But it probably makes sense why so many more cases would be cited than statutes or rules. Consider a case like United States v. Bright, 66 M.J. 359 (C.A.A.F. 2008). The essence of the case concerns a single UCMJ provision: Article 120. But the case cites five different CAAF/CMA opinions construing Article 120 (Simpson, Hicks, Cauley, Webster, Clark). Bright also includes a smattering of other CAAF/CMA cases for questions such as the standard of review. So in our common law system, where case law provides a layer of analysis on top of the statutory language, it's probably the norm rather than the exception for a breakdown of authority cited by a court to include more cases than statutes and rules.

CAAF declines to stop post-trial processing in Ali

The No Man has previously noted the petition for extraordinary relief filed by a non-citizen civilian accompanying our military forces, who was convicted by court-martial but received a subjurisdictional sentence. Today's online daily journal update reveals that on Thursday, CAAF declined to stop the convening authority's post-trial processing of the case. Ali v. Austin, __ M.J. ___, No. 09-8001/AR (C.A.A.F. Oct. 2, 2008).

Cert denied

In addition to Stevenson, No. 07-1397, eight other military cert petitions were denied today:

Rigby v. United States, No. 07-1549
Larson v. United States, No. 08-114
Thomas v. United States, No. 08-117
Adams v. United States, No. 08-170
Moorefield v. United States, No. 08-19
Hart v. United States, No. 08-193
Baker v. Dep't of the Army, No 08-5432
House v. United States, No. 08-60

The Supremes denied cert in Stevenson

More news later.

CAAF flips Phillippe -- again

I'm horribly confused. In United States v. Phillippe, 63 M.J. 307 (C.A.A.F. 2006), CAAF knocked down a three-year UA to a 49-day UA. CAAF ordered that the record be "remand[ed] to the United States Army Court of Criminal Appeals for reassessment under Sales, 22 M.J. at 307-08, or a rehearing may be ordered if appropriate." Id. at 312. When the case went back to ACCA, in an opinion available here, it concluded that "we cannot be reasonably certain of what sentence might have been adjudged and approved for a forty-nine day absence." United States v. Phillippe, No. ARMY 20040616, slip op. at 1 (A. Ct. Crim. App. Sept. 11, 2006). ACCA set aside Private Phillipe's sentence and returned the record to the CA for a "rehearing on the remaining period of absence without leave, if practical, and the sentence." Id., slip op. at 2. The case then drops off the radar. I can't find anything on the Web telling me what happened on remand to the CA or what happened at ACCA when the case returned to that court. But last Tuesday, CAAF set aside whatever ACCA did in a summary disposition that granted review of the following issue: "WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION IN REASSESSING APPELLANT'S SENTENCE, HAVING ALREADY CONCEDED THAT IT COULD NOT BE REASONABLY CERTAIN WHAT SENTENCE MIGHT BE IMPOSED AT THE TRIAL LEVEL." United States v. Phillippe, __ M.J. ___, No. 05-0674/AR (C.A.A.F. Sept. 30, 2008). CAAF summarily concluded "that the Court of Criminal Appeals abused its discretion in reassessing Appellant's sentence." Id. CAAF reversed ACCA as to the sentence and kicked the case back to the Army JAG.

What could ACCA possibly have done in its third look at the case that resulted in that outcome? Army Lurker, if you're still out there, could you please explain this one?

ACCA analyzes Military Rule of Evidence 804(b)(6)

United States v. Marchesano, __ M.J. ___, No. ARMY 20060388 (A. Ct. Crim. App. Oct. 2, 2008), is yet another military child molestation case. And like many child molestation cases, it presents a number of hearsay issues. ACCA's published opinion in Marchesano explores a seldom-seen Military Rule of Evidence: MRE 804(b)(6), which provides that a statement is not excluded by the hearsay rule if the declarant is unavailable as a witness and the declarant's statement is "offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness."

In a case of first impression, ACCA sets out a four-part test that must be met for Rule 804(b)(6) to apply: "(1) the witness was unavailable through the actions of another; (2) the act of another was wrongful in procuring the unavailability of the witness; (3) the accused expressly or tacitly accepted the wrongful actions of another; and (4) the accused did so with the intent that the witness be unavailable." Marchesano, slip op. at 12. ACCA also holds that "preponderance of the evidence is the proper standard of proof at trial."

ACCA goes on to hold that the military judge erroneously applied Rule 804(b)(6) to admit a hearsay statement she should have excluded. But ACCA ultimately concludes that the error was harmless and upholds SGT Marchesano's conviction and sentence.

Ryan cert petition redocketed

We previously discussed the cert petition in Ryan v. United States, which challenged the Navy-Marine Corps Appellate Defense Division counsel's refusal to file a cert petition on behalf of a Marine corporal whose court-martial results were affirmed by NMCCA and CAAF. We later noted that the cert petition had been returned to counsel to correct some formatting errors.

The Ryan cert petition has now been refiled and docketed by the Court. Ryan v. United States, No. 08-422. I haven't seen the actual cert petition, so I don't know to what extent it departs from the original petition, which is available here.

New published ACCA decision

United States v. Marchesano, __ M.J. ___, No. ARMY 20060388 (A. Ct. Crim. App. Oct. 2, 2008).

We'll post more over the weekend on Marchesano and at least one other military justice development.

New article on Article 119a

The September Army Lawyer is online with an article about the relatively new Article 119a. Major Kirsten M. Dowdy, Article 119a: Does It Protect Pregnant Women or Target Them?, Army Law., Sept. 2008, at 1.

NMCCA early warning system down

Navy Knowledge Online has been remapped. In the process, the link to NMCCA opinions appears to have been broken. Until (unless?) it's fixed, we won't be able to access NMCCA opinions before they're actually posted to the court's web site. If anyone learns of a new published NMCCA opinion, please let us know.