Monday, November 19, 2007

New published AFCCA opinion

The Air Force Court's web site appears to be down, but here's a link to a published opinion the court issued last Friday. United States v. Savoy, __ M.J. ___, No. ACM 36670 (A.F. Ct. Crim. App. Nov. 16, 2007).

It isn't readily apparent to me why Savoy is a published opinion. It doesn't seem to make any new law. Perhaps Judge Mathews the Greatest can play the same role that retired NFL quarterbacks play on football broadcasts and provide us with insight about what might have motivated the Air Force Court to publish this opinion.

To me, the opinion presents only two matters worthy of note. First, the Air Force Court seems to be suffering from an identity crisis. The opinion states: "In United States v. Fricke, 53 M.J. 149 (C.A.A.F. 2000), this Court recognized that Article 13, UCMJ, prohibits two things . . . ." Savoy, No. ACM 36670, slip op. at 6. "This Court"? CAAF decided Fricke. Heck, Fricke wasn't even an Air Force case.

Second, as longtime CAAFlog readers know, we have been obsessed with United States v. Adcock, 65 M.J. 18 (C.A.A.F. 2007). In Savoy, the defense argued that A1C Savoy's command had violated SECNAVINST 1640.9C, the Department of the Navy Corrections Manual, by failing to conduct weekly command visits. This presented a potentially interesting issue of whether an Air Force unit was required to obey a Department of the Navy regulation when it chose to confine an Airman in a naval brig. But ultimately the Air Force Court avoided the illegal pretrial confinement issue, finding that the defense had made a tactical judgment to present the illegal confinement conditions to the members in lieu of raising a motion before the military judge. Savoy, No. ACM 36670, slip op. at 6 (citing, inter alia, United States v. Inong, 58 M.J. 460 (C.A.A.F. 2003)).

The Air Force Court also observed: "We specified the issue of how the recent, United States v. Adcock, 65 M.J. 18 (C.A.A.F. 2007) decision affects this assignment of error. Because of our holding, we do not decide that question. However, we note that the government's regulatory violations (failure to visit and lack of a Memorandum of Agreement with the Navy Brig) concern us, especially in light of this appellant's mental health condition." Savoy, No. ACM 36670, slip op. at 8 n.9. Since the Air Force seems to regularly place its pretrial confinees in non-Air Force confinement facilities, there's probably a good chance that some future Airman will be confined in a naval brig without his or her command complying with SECNAVINST 1640.9C. In a case that squarely presents the issue, it will be interesting to see whether the courts require Air Force compliance with the naval reg.


Christopher Mathews said...

On occasion, a decision that might not otherwise seem a likely candidate may be published with the expectation that CAAF will take notice and weigh in one or more issues raised in the case. I have no idea if that's what happened here, but to the extent the CCA is trying to flesh out the limits and contours of Adcock, that could be a factor.

As for the cite to Fricke: I'll assume that the phrase "this Court recognized" should have read "the Court recognized" and that the typo will be corrected.

Dwight Sullivan said...

Thanks, Judge Mathews. You're the greatest!