AFCCA sets aside CA's action in published case

The Air Force Court has posted an interesting published case on its web site. United States v. Pullam, __ M.J. ___, No. ACM S31118 (A.F. Ct. Crim. App. Sept. 24, 2007). The court first rules that there are insufficient grounds in the case to say that the military judge abused her discretion when she declined to declare a mistrial based on some evidence suggesting that the members may have voted three times on the findings without seeking instructions on how to reconsider their findings. Id., slip op. at 2-4.

The more interesting part of the opinion sets aside the CA's action due to errors in the SJAR. Of particular significance, the SJA erroneously advised the officer who convened this SPECIAL court-martial that the maximum sentence included a dishonorable discharge. The DC did not comment on the error. The Air Force Court set aside the CA's action, reasoning:

The error certainly occurred and it was plain and obvious. The real issue is whether a substantial right of the appellant's was prejudiced. In this case, the only punishments imposed by the members were a reduction and a bad-conduct discharge. By advising the convening authority that the appellant could have received a dishonorable discharge, the convening authority was misinformed as to the maximum possible punishment which could have been imposed by the members. The Court believes the convening authority was thus misled in how to appropriately assess the defense request to set aside the bad-conduct discharge. In evaluating the impact of the misstatement of the maximum possible punishment, this Court is also troubled by a panoply of errors noted in both the SJAR and the defense submission to the convening authority that ultimately completely undermined the ability of the convening authority to effectively exercise his responsibilities, to the prejudice of the accused. Of particular note, the Personal Data Sheet does not reflect the three deployments of the accused. See United States v. DeMerse, 37 M.J. 488, 492 (C.M.A. 1993). It is similarly troubling that trial defense counsel's response to the SJAR and submission to the convening authority refers to a non-existent pretrial agreement, with a promise to reduce non-existent confinement.

Id., slip op. at 4-5/

In ordering relief, the Air Force Court emphasized that "the standard for meeting the test for prejudice is low in this area, requiring only 'some colorable showing of possible prejudice.'" Id., slip op. at 5 (quoting United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)).