Tuesday, February 26, 2008

Interesting addendum

In United States v. Michael, __ M.J. ___, No. 07-6005/NA (C.A.A.F. Feb. 26, 2008), available here, CAAF reaches the unremarkable conclusion that a laptop computer found adrift may be opened by military personnel trying to determine its ownership, who do not violate the 4th Amendment by looking at the "recent documents" list in an attempt to find the owner's name.

The more interesting aspect of Michael is Judge Ryan's and Erdmann's concurrence which indicates that having lost the jurisdictional fight in Lopez de Victoria, they will henceforth honor the Lopez de Victoria majority's holding that CAAF does have jurisdiction to review CCA rulings on Article 62 appeals.


John O'Connor said...

They almost have to, unless they get a third vote to overrule. Otherwise, they end up essentially just voting with whomever won below regardless of whether the CCA got it right or not. If the case is going to be decided on the merits, then they ought to weigh in on those merits.

Anonymous said...

After this decision, the Navy-Marine Corps appellate defense division is 1-8 this term. Their only victory was authored by an alum of several years ago. The batting average was much better in recent years. Have their been any changes in the N-MC appellate defense division?

Anonymous said...

Great moments in military law: the phrase "cum shot" will now return a hit in the military justice database. See footnote 3.

One aspect of CAAF review of Article 62 appeals is the time issue. Neither Lopez de Victoria or Michael mentions it. CAAF review eats up a considerable amount of time, particularly when, as in Michael, briefs get filed between terms. This was an easy case that NMCCA got exactly right. CAAF should have denied review. If they wanted to establish precedent on searches of gear adrift, they could have dispensed with oral argument to speed things up.