Running a yellow

There's an old joke that goes, "Contrary to popular belief, a yellow light doesn't mean, 'Speed up; the next one's red.'"

Please Shepardize United States v. Usry, 9 M.J. 701 (N.C.M.R. 1980). What is the first thing you see? Right, a yellow triangle at the top. Then what is the very first thing you see under "Citing Decisions"? "Criticized by: United States v. Baier, 60 M.J. 382, 2005 CAAF LEXIS 1 (C.A.A.F. 2005) 60 M.J. 382 p.385." If you were a CCA judge, don't you think you would look up a CAAF case criticizing Usry before citing it? Of course you would. So how can it be that Judge Per Curiam of the Navy-Marine Corps Court relied on Usry in United States v. Mitchell, No. NMCCA 200600998 (N-M. Ct. Crim. App. March 29, 2007) (per curiam)? (Mitchell is another case that is available on NKO, but not on NMCCA's web site, so I've reproduced it on CAAFlog's web page.) My question isn't a rhetorical one. Are some NMCCA decisions issued without Shepardizing the authorities they cite?

If so, at least we know that CAAF Shepardizes the opinions that the CCAs cite. Just as CAAF summarily reversed NMCCA's decision in United States v. Ryan, No. NMCCA 200401577 (N-M. Ct. Crim. App. March 29, 2007), for relying on the discredited Usry analysis, now CAAF has summarily reversed Mitchell -- which NMCCA decided on the same day as Ryan. United States v. Mitchell, __ M.J. ___, No. 07-0602/NA (C.A.A.F. Sept. 13, 2007) (summary disposition). When we discussed Ryan here, a perceptive commentator noted that NMCCA had made the same mistake in many cases. So Ryan and Mitchell are probably the first in a longer line of summary reversals.

Let's do the time warp again -- again

Having already announced a change in its terms of court, CAAF continues its conversion from the Julian to the Gregorian calendar by moving its Judicial Conference up a couple of months. CAAF's web page announces that the 2008 Judicial Conference will be 5-6 March, rather than in its usual month of May. The conference will once again be at Catholic University's Columbus School of Law.

Supreme trio

The Supreme Court's web site today reflects the docketing of three new cert petitions seeking review of CAAF decisions -- all three Air Force cases (and, interestingly enough, with three sequential docketing numbers). I am happy to report that all three petitioners are represented by counsel. Erickson v. United States, No. 07-316; Chapman v. United States, No. 07-317; Tippit v. United States, No. 07-318.

CAAF's decision in Erickson, of course, resolved the long-running legal dispute over whether it is plain error for a prosecutor's sentencing argument to analogize the accused to Hitler, Saddam Hussein and Osama bin Laden while also describing the accused as a demon belonging in hell. United States v. Erickson, 65 M.J. 221 (C.A.A.F. 2007). CAAF decided Chapman by summarily affirming on 26 June. Tippit is a speedy trial case focusing on the consequences of a CA withdrawing charges rather than dismissing them. United States v. Tippit, 65 M.J. 69 (C.A.A.F. 2007).

USNI good news and USNI bad news - UPDATED!

First the good news: the U.S. Naval Institute has granted CAAFlog permission to reproduce Baltimore Sun (or Sunpapers to Bawlmer area residents) reporter Bradley Olson's recent Proceedings piece about the Owens case. We should be posting a link shortly. NOW AVAILABLE HERE at www.caaflog.com.

Now the bad news: the USNI has asked me to announce that its bookstore in Preble Hall has been permanently closed. I guess that ever since I mentioned the bookstore over the weekend, impatient CAAFlog readers have been storming Preble Hall in search of the latest edition of Proceedings. CAAFlog regrets the error and hopes that no visitors to the United States Naval Academy Museum (which I am assuming still is in Preble Hall) were inconvenienced by the throng of Proceedings seekers.

Insightful commentary about the U.S. military justice system and war crimes trials

Today's Baltimore Sun (or, as it is generally known locally, Sunpapers) published an insightful op-ed by law of war guru, military historian and retired Marine judge advocate Gary Solis (whom I revere). (The op-ed is based on a similar piece by Gary Solis in Monday's L.A. Times.) In addition to making thought provoking observations about the U.S. military justice system's handling of war crimes, the piece delivers the news that charges were dropped against Capt Randy Stone, a judge advocate charged in the Haditha aftermath. Here's a link to the op-ed.

Symposium details announced

CAAF's web site now has a banner announcing the 19 October appellate advocacy symposium. The symposium features an all star cast -- and me. Online registration is available through the JAA web site. The fee for the course is $50. The location is the George Mason University School of Law in beautiful downtown Arlington.

The Judge Advoctae General of the Air Force certifies an issue

Today's daily journal update included the following issue certified by the Judge Advocate General of the Air Force:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN GRANTING THE DEFENSE MOTION TO SUPPRESS ALL EVIDENCE RESULTING FROM APPELLEE’S URINALYSIS TEST.

United States v. Miller, __ M.J. ___, No. 07-5004/AF (C.A.A.F. Sept. 7, 2007).

The Air Force Court's opinion, which rejected a government appeal under Article 62, is available here. United States v. Miller, No. Misc. Dkt. 2007-02 (A.F. Ct. Crim. App. June 25, 2007).

CAAF issues summary disposition

On 5 June, CAAF granted review of two issues in United States v. White, 65 M.J. 276 (C.A.A.F. 2007), and ordered briefs. The two issues were:

WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT'S PLEA TO UNPREMEDITATED MURDER UNDER ARTICLE 118(3), UCMJ, WHERE EVIDENCE WAS INTRODUCED BY BOTH APPELLANT AND AN EXPERT THAT, AT THE TIME OF THE OFFENSE, APPELLANT DID NOT KNOW THAT HIS ACTIONS WOULD CAUSE BODILY HARM OR DEATH.

WHETHER APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS COUNSEL ADVISED HIM TO PLEAD GUILTY, IMPROVIDENTLY AND AGAINST HIS WISHES.

In today's daily journal update, CAAF summarily said "no" and "no." Well, actually CAAF said, "On further consideration of the granted issues, 65 M.J. 276 (C.A.A.F. 2007), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed." United States v. White, __ M.J. ___, No. 07-0067/MC (C.A.A.F. Sept. 10, 2007).

The lower court's opinion, which addresses both of the granted issues as well as granting relief for illegal pretrial punishment, is available here. United States v. White, No. NMCCA 200200803 (N-M. Ct. Crim. App. Aug. 31, 2006).

Can anyone from NAMARA tell us (or theorize about) what happened?

Half time

CAAF has posted its oral argument schedule for December. Five of the ten arguments are set for only 15 minutes per side.

From October through December, the Coast Guard has one argument at CAAF, the Air Force seven, the Army nine, and the Navy-Marine Corps thirteen.

Now available for Proceedings non-subscribers

Kathleen Duignan's article, mentioned in the post below, is now available to Proceedings non-subscribers at this link. (Clicking on it is faster than walking to Preble Hall, but it still won't get you Bradley Olson's article about the Owens case. So a stroll through the Academy grounds may still be in order.)