Very significant case for post-trial w/subjurisdictional sentence

You all know that a client gets an automatic appeal to the Court of Criminal Appeals when the sentence is for more than one year and/or a punitive discharge.

You all know that a case with a subjurisdictional sentence gets a legal review and can be petitioned to TJAG under Art. 69(b). Also, you should know that a brief can be submitted for the Art. 69(a) review after a GCM (or as some of us do [because of timing] a request for reconsideration).

TJAG acts on legal error only. TJAG does not do a factual sufficiency review.

TJAG can refer the case to the CCA–again legal errors only, no factual sufficiency.

It has been long considered that the CCA does not have the jurisdiction to review a subjurisdictional case without a TJAG referral. That CHANGED (for the moment and only for DoN) in United States v. Brown, NMCCA 29 April 2020.

Brown filed a Writ with NMCCA asking for mandamus and prohibition.

This case presents the issue of whether this Court may entertain a petition for extraordinary relief, even where it does not appear likely that mandatory appellate review by this Court will obtain, in order to ensure the fairness of pending court-martial proceedings. The type of harm alleged—the bias or apparent bias of the presiding military judge—goes to the core of such proceedings’ fairness, and we are asked to take appropriate action to remedy that alleged harm before it takes root.

NMCCA decided it had jurisdiction and reached the merits AND granted partial relief.

Applying this law to the facts and circumstances of this case, we find we have potential jurisdiction and may entertain the petition. While the adjudged sentence of reduction to E-7 (as yet unapproved) would appear likely to foreclose the pathway to mandatory appellate review under Article 66, that proposition is itself tenuous, as it rests on the assumption that none of the issues taken up at the post-trial Article 39(a) session results in a mistrial. In any event, even assuming there is no pathway to mandatory jurisdiction under Article 66, the Article 69 pathway to jurisdiction remains open since the JAG could still receive the case and send it to this Court for review. As we have previously found, Article 69 can just as validly serve as a source of this Court’s potential jurisdiction as Article 66. See United States v. Booker, 72 M.J. 787, 797 (N-M. Ct. Crim. App. 2013) (concluding that review of a writ petition “is ‘in aid’ of our jurisdiction [where] we could also acquire appellate jurisdiction over this case if the Judge Advocate General exercised her authority under Article 69(d), UCMJ, to forward the record of trial to us for review following a finding of guilty”).

Take a read, see what you think. Perhaps there are cases worth petitioning the CCA for a writ.

[I can say no more because of a collateral case related to Brown.]