Why no briefs in Government appeals?

7/21/2020

CAAF Rules 19(a)(7)(A):
"Article 62, UCMJ, Appeals. Where a petition has been granted in a case involving a decision by a Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC § 862, no further pleadings will be filed and the Court will, whenever practicable, give priority to such cases."

Does anyone know the reasons for this practice, recently implemented in the Garcia grant?

Brenner Fissell

EIC

Scott

7/21/2020 06:16:13 pm

It may have to do with the fact that, when reviewing an Article 62 appeal, the CAAF is reviewing the Military Judge's ruling itself rather than the CCA’s ruling. See this explanation from Muwwakkil:

Although the first certified issue refers to the CCA’s application of the Jencks Act and R.C.M. 914, the question before us actually involves the decision by the military judge to strike GP’s testimony. In circumstances such as these, we deem it appropriate to primarily address the military judge’s ruling rather than the CCA’s opinion. See United States v. Neal, 68 M.J. 289, 302 (C.A.A.F. 2010).

Perhaps not exactly the same because in Garcia, as contemplated by the rule cited, the Government appeal was granted by the lower court.

That said, the CAAF, seemingly by necessity, regularly discusses the merits of the lower court opinion in Article 62 appeals and, to my knowledge, new briefs are often filed before CAAF in such cases.

I would be very interested if someone with more knowledge in this area can chime in.

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Why no briefs in Government appeals?

Brenner Fissell

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