Saturday, December 15, 2007

To certify or not to certify

This coming week, the Judge Advocate General of the Navy will have to decide whether to certify NMCCA's Wild decision to CAAF. CAAF's daily journal for 3 December included an order extending the deadline for filing a certificate of review in the case until 21 December 2007. United States v. Wild, __ M.J. ___, No. 08-5001/MC (C.A.A.F. Dec. 3, 2007). But given the normal one-day delay before daily journal items hit CAAF's web site and CAAF's closure on 24 December, we likely won't know what RADM MacDonald decides until Wednesday, 26 December.

Wild is a split unpublished NMCCA decision, available here. United States v. Wild, No. NMCCA 200700108 (N-M. Ct. Crim. App. Oct. 11, 2007). The government lost the original record of trial in the case. Almost two years after the CA acted, three copies of the record -- but not the original -- showed up at NAMARA. The Navy-Marine Corps Court indicates that it doesn't appear that any trial participant reviewed the copies or validated their completeness.

Writing for himself and Judge Harty, Judge Kelly set aside the CA's action and remanded the case for the military judge to authenticate a copy. Senior Judge Rolph dissented. He argued that given the presumption of regularity, the copies should be assumed to be accurate and complete copies of the lost original.

Without the split in the NMCCA panel, I doubt anyone would have seriously thought about certifying this case to CAAF. Any predictions as to whether the Judge Advocate General of the Navy will choose to certify it?


John O'Connor said...

From CAAFlog's description of the case, I was ready to conclude that the majority was right and the JAG should not certify. But that's because I read CAAFlog's description as suggesting that the ROT copies didn't have any indicia of authentication. But the opinion itself makes clear that all three copies of a ROT have a copy of the authentication page that was signed by the MJ.

In light of that, I think Judge Rolph has it right that the case need not be sent back to Dave Jones so that he can say, yup that's a photocopy of my signature from this one spec drug pop SpCM I handled three years ago. This is particularly true where the accused has not even suggested that anything is missing from the ROT.

This case is sufficiently fact-specific that I could see not certifying it, but I think I would send it up for no reason other than to put a stake in the ground that mindless technicalities should not slow down the appellate review process (as opposed to the two-year period when some lance corporal had the ROT stuffed in his bottom left-hand drawer at the LSSS).

The larger question is why these cases even go up on appeal. This is the classic case where the accused would have been perfectly happy to waive appellate review, if only the President would let him do it . . . .

Dwight Sullivan said...

Just to be clear, I described the majority as saying that "it doesn't appear that any trial participant reviewed the copies or validated their completeness." The majority was concerned with the accuracy of the copies, not the authentication of the missing original. I just wanted to make clear that I had not described the majority as concerned with the authentication of the original.

John O'Connor said...

And to be clear, I wasn't accusing CAAFlog of shading the facts. I just misunderstood the facts and didn't really understand them until I read the case.