Rules Note: Army TJAG Withdraws Certification in Henry

7/29/2020

In the future, when commenting on any Daily Journal entry that is relevant to interpreting CAAF's rules, I will highlight relevant sections of the CAAF Rules Guide that discusses the issue (I recently joined as a co-editor). These will be called "Rules Notes."

Today, consider the following interesting entry, which indicates that the Army TJAG withdrew certification of an issue.

From last week:
No. 20-0325/AR. United States, Appellant. v. Dashaun K. Henry, Appellee. CCA 20190688. Appellant's motion to withdraw the certificate for review without prejudice is granted.

Here is what was certified:
Wednesday, July 22, 2020
Certificate for Review Filed
No. 20-0325/AR. United States, Appellant v. Dashaun K. Henry, Appellee. CCA 20190688. Notice is given that a certificate for review of the decision of the United States Army Court of Criminal Appeals and supporting brief were filed under Rule 22 on this date.
DID THE MILITARY JUDGE ABUSE HIS DISCRETION IN EXLUDING [sic] THE FOUR STATEMENTS ON WHICH THE PROSECUTION SOUGHT INTERLOCUTORY APPELLATE REVIEW, PURSUANT TO ARTICLE 62, UCMJ.

If one peruses § 22.03 of the Rules Guide, one finds no reference to a prior withdrawal of a certification. Has anyone heard of this happening before--and why?

Brenner Fissell

EIC

phil cave link

7/29/2020 02:23:20 pm

Courtesy of a friend,

Mischke, 1952 CMA LEXIS 581

Stevens, 1952 CMA LEXIS 528

Johnson, 1954 CMA LEXIS 647

U.S. v. McLane, 20 M.J. 369 it appears that appellee died before completion of the review of his case. This is consistent with the current practice and law when an appellant dies while case is on appeal--sadly one of my early appellate cases as a civilian was a client who killed himself at the USDB.

United States v. Beyers, 32 C.M.R. 755, 756, 1962 CMR LEXIS 215, *3

. . . .

Henry at ACCA
https://www.jagcnet.army.mil/Apps/ACCAOpinions/ACCAOpinions.nsf/MODD/82FF41D11353D4FC852584EF004FC445/$FILE/mo-henry,%20dk.pdf

The United States appeals the ruling of a military judge denying the
introduction of hearsay statements as present sense impressions and excited utterances under Military Rules of Evidence [Mil. R. Evid.] 803(1) and 803(2). We find the military judge applied the law correctly and did not abuse his discretion finding the government failed to establish a sufficient foundation for the statements to be admitted as either present sense impressions or excited utterances.
Accordingly, we affirm the military judge's ruling.
. . .
Under the specific facts of this case, the government failed to show that the statements were sincere and spontaneous as opposed to the product of reflection.Accordingly, we find the military judge applied the correct law and did not abuse his discretion in finding that there was an insufficient foundation for each of the four
statements to qualify as present sense impressions.

A thought--wag'ing, maybe swag'ing it here.

The case isn't complete? Therefore, the door might be opened by the defense in XE or as rebuttal? So, the appeal isn't really timely, although that's not a basis for ACCA's decision? Howell v. United States, 75 M.J. 386, (Article 62 limits interlocutory appeals – “[a]n appeal that occurs before the trial court’s final ruling on the entire case.”) So while the ACCA and MJ may be correct at the moment circumstances may change and make the appeal better--or worse? Perhaps someone at GAD thought that they would have a better chance to sustain a better finding that there was “[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Although reading Henry it's not clear DAD asserted the proffered evidence was not substantial enough anyway?

So, under that circumstance why not permit the gubmint to withdraw WITHOUT prejudice? The rule may not be explicit but CAAF now has endorsed that course of action. Perhaps CAAF will now add such a rule. This is not a situation like CAAF Rule 21.f, where I think CAAF is taking a prudent step to make sure an appellant knows what she's doing in withdrawing a petition.

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Rules Note: Army TJAG Withdraws Certification in Henry

Brenner Fissell

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