With United States v. Salyer, No. 13-0186 (C.A.A.F. Aug. 2, 2013), the Court of Appeals for the Armed Forces (CAAF) decided its last case for the term. The court issued a number of major opinions (including Salyer–where the court found unlawful command influence and dismissed the case with prejudice), yet many far-reaching issues were left unresolved.
In United States v. Cote, 72 M.J. 41 (C.A.A.F. 2013), the court split with many federal circuits and held that a magistrate’s time-limitation in a search warrant was relevant to determining whether a search was constitutionally reasonable. The court indicated a sea change in United States v. Castellano, 72 M.J. 214 (C.A.A.F. 2013), by holding that the members and not the military judge must find the underlying facts to determine whether an accused’s conduct was constitutionally protected under United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004). And the court discussed the scope of the confrontation clause’s application to the military in two opinions, United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), and United States v. Porter, 72 M.J. 335 (C.A.A.F. 2013).
The court also decided a number of other interesting issues, but their long-term impact is yet to be seen. All of the term’s decisions are linked here. One point that is clear, however, is that a number of major issues where left undecided and the upcoming term should be interesting.
CAAF will likely wrestle with many of the major unlawful command influence issues related to senior leaders’–including the President’s–comments about sexual assault in the military. The natural questions that will follow Castellano, such as whether the prosecution must allege the Marcum facts on the charge sheet, may also reach the court. Similarly, the continued viability of Article 125, UCMJ, may be ripe for consideration. Finally, there are numerous issues related to the convictions under the 2007-2012 version of Article 120, UCMJ–including various sentencing issues–that will likely vie for CAAF’s consideration.
Though CAAF decided a number of major issues in the latest term, the upcoming term promises to be even more influential on the military justice system. As the law at court-martial and on appeal continues to evolve, consult with your attorney to ensure that you are zealously represented and your rights are protected.