UCMJ art. 62

Will the government appeal the MJ's post-trial grant of a mistrial in United States v. Edwards? The findings and conclusions certainly seem defensible and as the MJ notes at the end, a retrial is allowed.

It seems the evidence developed that one of the members may not have been completely candid on voir dire.

When there is a question about a juror’s or member’s fairness and impartiality, the civilian and military appellate courts have made it clear that, when determining whether to grant a mistrial, the trial courts must consider the “appearance of fairness” and the public’s “perception” of the process.  Commisso, 76 M.J. at 321. 

     a.  This Court harbors no doubt that if members of the public learned that a member made statements similar to those made by LTC JK at the open door meeting, then that would negatively impact the public’s perception of the fairness and impartiality of the court-martial.  In other words, a member’s statement that the convening authority put him on the panel because he “gets things done” would undermine an informed public’s confidence of that member’s objectivity as a court member and the fairness of the trial itself. 

     b.  When making this finding, the Court need not speculate on this issue.  When asked about his perception of the fairness and impartiality of this court-martial if a panel member said the things attributed to LTC JK, SFC BK credibly, bluntly, and astutely testified, “That wouldn’t seem fair to me.  It’d be like playing cards and the dealer has stacked the deck,” or words to this effect. 

No. 22-0052/AR. U.S. v. Samuel B. Badders. CCA 20200735. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2018), it is ordered that said petition is granted on the following issue:
 
WHETHER THE ARMY COURT HAD JURISDICTION OVER THIS GOVERNMENT APPEAL OF THE MILITARY JUDGE'S POST-TRIAL ORDER GRANTING A MISTRIAL.

​ACCA decision here. Post-trial, the military judge granted a mistrial and the government appealed. ​

Tuesday, March 29, 2022
9:30 a.m.: United States v. Samuel B. BaddersNo. 22-0052/AR
(Appellee)(Appellant)Counsel for Appellant: Terry Zimmerman, Esq. (supplement)
                                                    ---------------------------- (reply)
Counsel for Appellee:  CAPT Dustin Morgan, JA, USA (answer)
Case Summary: GCM conviction of sexual assault. Granted issue questions whether the Army Court had jurisdiction over this government appeal of the military judge's post-trial order granting a mistrial.