CGCCA creates massive service split

In its new opinion in United States v. Bridges, __ M.J. ___, Docket No. 1233 (C.G. Ct. Crim App. May 18, 2007), the Coast Guard Court creates a split with the Navy-Marine Corps and Army CCAs.

The issue in Bridges concerns the introduction of uncharged misconduct while Bridges was confined in the brig in "rebuttal" to a mitigation letter from his father during the sentencing hearing. A two-judge majority of the panel holds that the evidence was properly admitted and specifically rejects the Army Court's holding in United States v. Henson, 58 M.J. 529 (A. Ct. Crim. App. 2003), and the Navy-Marine Corps Court's holding in United States v. Lowe, 56 M.J. 914 (N-M. Ct. Crim. App. 2002).

The Coast Guard Court reasons that "the prohibition of M.R.E. 404(b) do[es] not obviously apply after the accused has been convicted, since there is no longer a danger of conviction on the basis of prior misdeeds . . . ." The Coast Guard Court criticizes Henson for "leap[ing] from the pre-findings context . . . to the presentencing context without explanation."

The Coast Guard Court is just as dismissive of Lowe: "United States v. Lowe, 56 M.J. 914 (N.M.Ct.Crim.App. 2002), supports Appellant, but we find it no more persuasive than Henson in that it misapplies United States v. Wingart, 27 M.J. 128 (C.M.A. 1988)."

Judge Felicetti writes separately in Bridges and concludes that the evidence of appellant's misconduct in the brig was erroneously admitted. But he concurs in the result, finding that the error was harmless.

As both the majority and concurring opinions suggest, the prejudice prong is difficult for the defense to meet in this case. In deciding when to exercise its discretionary jurisdiction, CAAF usually gives great weight to whether the supp suggests that the assigned error actually prejudiced the defense. One wonders whether CAAF will nevertheless grant review in Bridges (assuming Bridges petitions for a grant of review) to resolve the service split that the Coast Guard Court's opinion prominently highlights. Given the recent paucity of grants, at least it would provide an interesting hour of oral argument next term.

New CAAF decision: United States v. Bridges

United States v. Bridges, __ M.J. ___, No. 07-0701/CG (C.A.A.F. May 12, 2008).

Chief Judge Effron for a unanimous court.

CAAF punted on the granted issue, holding that even if a letter concerning Fireman Machinery Technician (I have no idea what rank that is) Bridges' negative attitude and disciplinary infractions in the brig was improperly admitted, "any error in the admission of the brig letter did not substantially influence the adjudged sentence." Id., slip op. at 8.

CAAF to resolve service split over sentencing evidence

We previously noted that the Coast Guard Court's holding in United States v. Bridges, 65 M.J. 531 (C.G. Ct. Crim. App. 2007), created a massive service split by expressly rejecting the Army Court's holding in United States v. Henson, 58 M.J. 529 (A. Ct. Crim. App. 2003), and the Navy-Marine Corps Court's holding in United States v. Lowe, 56 M.J. 914 (N-M. Ct. Crim. App. 2002).

CAAF will now resolve the service split over whether the Government may rebut opinion evidence of good character with extrinsic evidence of specific instances of misconduct. The granted issue in Bridges is:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED PROSECUTION EXHIBIT 3 OVER DEFENSE OBJECTION BECAUSE IT WAS EXTRINSIC EVIDENCE OF SPECIFIC ACTS OF MISCONDUCT OFFERED TO REBUT AN OPINION. See United States v. Hallum, 31 M.J. 254 (CMA 1990).

United States v. Bridges, __ M.J. ___, No. 07-0701/CG (C.A.A.F. Nov. 16, 2007).

CCA Update

The Coast Guard Court has issued a new published opinion. United States v. Bridges, __ M.J. ___, Docket No. 1233 (C.G. Ct. Crim App. May 18, 2007). I'm going to the Nats-Os game tonight, so Guert, the floor is yours for the next several hours.

Also, NMCCA has provided a rare intra-month update of its opinions on its web site. Here's a serious idea. I understand from earlier commentary on the blog that the Air Force maintains the Coast Guard Court's web site. Is there any chance that the Navy-Marine Corps Court could enter into a similar arrangement with the Air Force web master so that Navy-Marine Corps Court opinions could be posted the same day, like today's CGCCA opinion in Bridges is?