Friday, October 26, 2007

Unpublished NMCCA Article 62 appeal opinion

In a comment to the post discussing NMCCA's Ratliff decision below, Justin observes that NMCCA also recently decided a unpublished Article 62 appeal case in which the court dismissed the government's appeal, finding that the trial counsel didn't successfully notice an appeal before the charges had been returned to the convening authority. United States v. Dossey, No NMCCA 200700537 (N-M. Ct. Crim. App. Oct. 23, 2007). I've posted the opinion on The opinion is most notable for an impressive and convincing concurrence by Judge White arguing that a mistrial ruling is not appealable under Article 62.


John O'Connor said...

You had me at hello . . . but then you lost me when I read the statute.

I was perfectly ready to agree that a mistrial logically might not be appealable under Article 62, but that's not what the statute says. Article 62 speaks of an order "terminating the proceedings" with respect to one or more charges and specifications. I think the plain and reasonable meaning of that provision extends to disposition of charges both by dismissal and by declaration of a mistrial.

I also am not convinced by the concurrence's discussion of legislative history (and, indeed, CAAFlof, as a self-described "Scalian" on statutory construction, I'm surprised that you are convinced). While I am (unlike CAAFlog) not a pure "Scalian," the concurrence's discussion of the legislative history really just notes that the discussion of the provision dealt with the much more commonplace occurrence of dismissals, and didn't mention mistrials one way or another. If the legislative history had included a probative statement (meaning a majority report, for example, and not a single member's floor statement) that mistrials can't be appealed under Article 62, I'd probably be more than willing to go along. But I don't see how the discussion of dismissals in the legislative history, with no discussion whatsoever of mistrials, can change the plain reading of the statute.

I also don't see how the concurrence's uber-dicta that the declaration of a mistrial might or might not eliminate a prior appeal of an evidentiary ruling. If a mistrial has been declared, then any prior appeal of an evidentiary ruling would seem to be moot (at least to me), as the decision only matters if the mistrial is overturned, and (in Judge White's conception of the law) the mistrial can never be overturned. So I don't see how all that would make sense.

Oh, and nice job by the judge not getting the defense's view on declaration of a mistrial.

Dwight Sullivan said...

Note that Judge White's concurrence did rely on a committee report in addition to a floor statement. (Unfortunately the Congressional Record from that era isn't online, so I can't even look at it to see whether there are hints as to whether Senator Jepsen's floor statement was actually said on the floor. Much of the content in the Congressional Record, of course, is submitted by Members of Congress after the fact. And Navy plays at home today, so going to the Maryland State Law Library -- which is two buildings away from Navy-Marine Corps Memorial Stadium -- isn't really an option this weekend.)

On page 7 of the Dossey opinion, immediately following the Jepsen quote from the Congressional Record, Judge White observes: "Similar language is found in the House Report on the bill. H. REP. NO. 98-549 at 19 (1983)." (Though, interestingly, the portions of Sen. Jepsen's statement that Judge White emphasizes are NOT part of the House Report.)

Here's that excerpt from the House Report:

5. Interlocutory appeal. Under federal civilian law, an interlocutory ruling by the trial judge that excludes evidence or otherwise results in dismissal of charges generally is subject to review at the request of the government. This is not available in military law and results in dismissal of charges without appellate review. The bill permits interlocutory appeal by the government under standards similar to those applicable in federal civilian law under 18
U.S.C. S 3731.

(While the Congressional Record from 1983 doesn't seem to be online, that Report is. Here's the link:

And, of course, for those who are legislative history supporters -- or even legislative history agnostics -- committee reports are almost universally recognized as the highest order of legislative history. See, e.g., Garcia v. United States, 469 U.S. 70, 76 ("In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature's intent lies in the Committee Reports on the bill, which 'represen[t] the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation'" (quoting Zuber v. Allen, 396 U.S. 168, 186,(1969))).

As frequent CAAFlog readers know, I have great respect for JO'C's opinions and analysis, so I went back and relooked at Judge White's concurrence in light of the concerns that JO'C raises. While I still think that Judge White reached the result result, I would now suggest following a slightly different path to get there. I'll make a new post setting out my thoughts.