In United States v. Mercier, __ M.J. __, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) the court denied a Government interlocutory appeal of a military judge’s ruling that found that a specification was improperly referred and dismissed the specification without prejudice.
This would seem to be a perfect opportunity to take up, again, two suggested improvements to military law practice.
Let’s have the President issue an Executive Order. The Attorney General of the United States issues several manuals for U. S. Attorneys. This is guidance from HQ intended to assure some measure of uniformity among the U. S. Attorney offices throughout the nation. It is time to impose something akin to the U. S. Attorney’s Manual by executive order (in particular, 9-27.000 – Principles Of Federal Prosecution)?
https://www.justice.gov/usam/title-9-criminal
The probable cause standard is the same standard as that required for the issuance of an arrest warrant or a summons upon a complaint (See Fed. R. Crim. P. 4(a)), for a magistrate’ s decision to hold a defendant to answer in the district court (See Fed. R. Crim. P. 5.1(a)), and is the minimal requirement for indictment by a grand jury. See Branzburg v. Hayes, 408 U.S. 665, 686 (1972). This is, of course, a threshold consideration only. Merely because this requirement can be met in a given case does not automatically warrant prosecution; further investigation may be warranted, and the prosecutor should still take into account all relevant considerations, including those described in the following provis ions, in deciding upon his/her course of action. On the other hand, failure to meet the minimal requirement of probable cause is an absolute bar to initiating a Federal prosecution, and in some circumstances may preclude reference to other prosecuting authorities or recourse to non-criminal sanctions as well.
And the Criminal Resource Manual.
There seems much in them that could be copied almost word for word.
And perhaps now it is time to adopt Rule 5.1, Fed. R. Crim. Pro., either by statute or executive order? IMHO, the President can amend R.C.M. 405, through the UCMJ art. 36 power, and adopt a rule similar to that found in federal district court.
https://www.law.cornell.edu/rules/frcrmp/rule_5.1
(f) Discharging the Defendant. If the magistrate judge finds no probable cause to believe an offense has been committed or the defendant committed it, the magistrate judge must dismiss the complaint and discharge the defendant. A discharge does not preclude the government from later prosecuting the defendant for the same offense.
Under federal practice, a USA can still prosecute by restarting with new evidence should it arrive later and the prosecution not being barred by the statute of limitations.