caaf Tag Archives — Page 2 of 4 — Court-Martial Trial Practice Blog

Diamond petition filed

September 15, 2010 | The Law Office of Philip D. Cave

The CAAF Daily Journal for 14 September 2010 notes the filing of a petition for review by John M. Diamond.

Here is a FayObserver.com piece which documents some of the history of this case, including Michelle Theer’s abortive efforts to get a new trial.

According to court documents, witnesses for the prosecution repeatedly testified that Theer did not cooperate with the investigation and a prosecutor told the jury in closing arguments that Theer invoked her right to a lawyer when a co-defendant was arrested.

Urinalysis cases

September 14, 2010 | The Law Office of Philip D. Cave

In two days CAAF has granted two urinalysis cases citing to Melendez-Diaz. Note Blazier is still undecided. In the Air Force case the defense did not object, in the Navy case the defense did object.

No. 10-0668/AF. U.S. v. Jerrod D. NUTT. CCA S31600. Review granted on the following issues:

WHETHER, UNDER MELENDEZ-DIAZ v. MASACHUSETTS, 129 S.CT. 2527 (2009), THE ADMISSION OF THE DRUG TESTING REPORT VIOLATES APPELLANT’S SIXTH AMENDMENT RIGHTS UNDER THE CONFRONTATION CLAUSE.

Denedo sitrep

September 9, 2010 | The Law Office of Philip D. Cave

It appears that Denedo’s case is over. On 8 September 2010, the Court of Appeals for the Armed Forces, with C.J. Effron and J. Baker dissenting, denied the filing of a writ appeal petition out of time. The majority writes:

In support of the motion for leave to file writ-appeal petition out of time, Denedo’s counsel explained that he “erroneously believed that this case was governed by Rule 19(a)(1)(B),” which provides sixty days from the date of the decision at the CCA for filing a petition for review with this court.

Appellate defense counsel requests this court suspend Rule 19(e) pursuant to our authority under C.A.A.F. Rule 33, which states “[f]or good cause shown, the Court may suspend any of these rules in a particular case, on application of a party or on its own motion, and may order proceedings in accordance with its direction.” In our view, neither the fact of the previous Supreme Court review of Denedo’s case, nor the Padilla case are relevant to our analysis as to whether there was good cause for a late filing. Counsel’s claim that he erroneously believed that this court imposed a sixty day deadline for the appeal of writ-appeal petitions does not provide us with the requisite good cause for suspending the deadline for filing a writ-appeal.

CAAF opens up

September 8, 2010 | The Law Office of Philip D. Cave

Here are some interesting tidbits from the CAAF orientation session for new attorneys courtesy of NIMJ.blog.

As for the rules changes, a big (and quite welcome, in my opinion) change is the new system in which nearly all CAAF pleadings are eligible for electronic filing. Be sure to redact privacy/sensitive information from such filings, as final briefs will be placed on CAAF’s webpage, starting this term.

Other changes make the already small needle’s eye to SCOTUS more microscopic for military appeals. While CAAF judges previously granted review of all appeals in which the appellant was serving 30 years or more in confinement, that is no longer the policy. Furthermore, for cases that come back to CAAF after a remand to the CCAs, CAAF will no longer automatically grant review of the case.

Coast Guard certified issues to CAAF

August 20, 2010 | The Law Office of Philip D. Cave

The Coast Guard has certified the following issues to CAAF.

No. 10-6010/CG. U. S., Appellant v. ANDREW L. DALY, Appellee. CCA 001-62-10. Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED IN APPLYIING THE STANDARD OF FAIR NOTICE, AS OPPOSED TO MISTAKE OF LAW, IN AFFIRMING THE MILITARY JUDGE’S FINDING THAT, UNDER COAST GUARD REGULATIONS, THE ACCUSED WOULD NOT HAVE KNOWN HIS CONDUCT WAS CRIMINAL AND THEREFORE HE COULD NOT BE PUNISHED UNDE ARTICLE 134, UCMJ.

I’ve got mine

August 7, 2010 | The Law Office of Philip D. Cave

Nerad decided at CAAF

July 27, 2010 | The Law Office of Philip D. Cave

CAAF has issued an opinion in United States v. Nerad. RYAN, J., delivered the opinion of the Court, in which EFFRON, C.J., and ERDMANN, J., joined. BAKER, J., filed a separate opinion concurring in the result. STUCKY, J., filed a separate dissenting opinion.

Nerad gets a remand to AFCCA for the court to clarify it’s ruling.

Finding no dramatic change

July 4, 2010 | The Law Office of Philip D. Cave

In United States v. Morton, ACCA on remand from CAAF found no “dramatic change in the penalty landscape” and affirmed the sentence imposed at trial.

On first review ACCA had set-aside two specifications regarding a falsification of a sick-slip under Article 123, UCMJ. But ACCA then affirmed two specifications thought to be closely related to the dismissed specifications. CAAF dismissed the two specifications and said that:

By dismissing those specifications, our superior court rang the death knell of the “closely-related offense” doctrine. United States v. Morton, 69 M.J. 12, 13 (C.A.A.F. 2010). Also as part of their decision, our superior court returned the record of trial to The Judge Advocate General for remand to this court for sentence reassessment.

All too common

June 29, 2010 | The Law Office of Philip D. Cave

CAAF has decided: United States v. Contreras, No. 09-0754/AF

We granted review of the following issue:

WHETHER THE HOUSEBREAKING CHARGE SHOULD BE SET ASIDE BECAUSE THE UNDERLYING CRIMINAL OFFENSE, INDECENT ACTS WITH ANOTHER UNDER ARTICLE 134, UCMJ, IS A PURELY MILITARY OFFENSE.

Graner decided

June 25, 2010 | The Law Office of Philip D. Cave

CAAF has decided United States v. Graner. Graner loses.

We granted review in this Abu Ghraib case to determine whether the military judge abused his discretion in (1) refusing to compel the Government to produce certain memoranda requested by the defense; (2) excluding the testimony of, and an e-mail
from, Major Ponce; and (3) limiting the testimony of a defense expert witness. We hold that the military judge did not abuse his discretion in any of these decisions and affirm the judgment of the United States Army Court of Criminal Appeals (CCA).