Should Counsel be Afraid to ask CAAF to Overrule Itself?

7/28/2020

The answer is "no." Our trusty intern team has analyzed all cases in the last decade in which CAAF was asked to overrule itself. Overruling occurred in six of the thirteen cases. Here are the cases--and whether the overruling in fact occurred:

United States v. Phillips, 70 M.J. 161 (2011) – No
United States v. Payne, 73 M.J. 19 (2014) – Yes
United States v. Gutierrez, 74 M.J. 61 (2015) – Yes
United States v. Simmermacher, 74 M.J. 196 (2015) – Yes
United States v. Quick, 74 M.J. 332 (2015) – No
United States v. Cooley, 75 M.J. 247 (2016) – Yes
United States v. Mangahas, 77 M.J. 220 (2018) – Yes
United States v. Blanks, 77 M.J. 239 (2018) – No
United States v. Andrews, 77 M.J. 393 (2018) – No
United States v. Dinger, 77 M.J. 447 (2018) – Yes
United States v. Perkins, 78 M.J. 381 (2019) – No
United States v. Tovarchavez, 78 M.J. 458 (2019) – No
United States v. Jessie, 79 M.J. 437 (2020) – No

For the points of law that were addressed in these cases, read more below.

Scott

7/28/2020 12:26:46 pm

Fantastic reference compilation. I’m sure many hours went into it. Much appreciated.

William Cassara link

7/28/2020 03:39:15 pm

Add U.S. v. Barberi, overruled by U.S. v. Piolunek less than a year later as I recall.

Cloudesley Shovell

7/28/2020 08:42:35 pm

Go back a little further. CAAF overruled itself in the very same case! 4th A search and seizure issue. See US v. Stevenson, 66 MJ 15 (2008).

Phil Cave link

7/29/2020 11:07:22 am

Actually, the practical answer is no you should not be afraid to ask CAAF, or a CCA, to overrule prior "precedent" in the right case. What the cases above tell us is that you won't win every-time but you can tell yourself there's extraordinarily high odds in favor of an appellant. (Note, there are a couple of AFCCA cases from a while ago where AFCCA was not afraid to overrule CAAF--Brother Bill may remember the exact cases).

There are any number of CCA cases that become precedent within that Service--the Appellant may have won or lost, and the Appellant doesn't appeal the loss or the Gubmint doesn't certify the loss.

And at trial you should not be afraid to ask the military judge to hold a "precedent" is not applicable to your case because the precedent is wrongly decided (as well as distinguishable). You do this for several reasons: issue preservation, developing a factual record to support a different rule, and setting out the potential good faith arguments to help the appellate counsel. Don't forget to cite to the adverse precedent. Whenever tells me (or my brother's and sisters) that's a dead issue--my response is "United States v. Fosler."

Here's my off the wall law school question.

In United States v. Davis, 26 M.J. 445 (C.M.A. 1988) a conviction for "cross-dressing" under Article 134 was affirmed. In today's military is it good to rely on Davis?

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Should Counsel be Afraid to ask CAAF to Overrule Itself?

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