U.S. v. Lopez, 86 M.J. 139

Military Justice Personnel: Military Judge: Discretion

1. military judges abuse their discretion (1) if the findings of fact upon which they predicate their ruling are not supported by the evidence of record, (2) if they use incorrect legal principles, or (3) if their application of the correct legal principles to the facts is clearly unreasonable
2. in the abuse of discretion context, when an appeal presents a mixed question of law and fact, the CAAF will find that a military judge abused his or her discretion if the findings of fact are clearly erroneous or the conclusions of law are incorrect

Trial Stages: Appeals: Generally

1. evaluation of appellate discovery issues involves mixed questions of law and fact

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. in a post-trial dispute at a CCA over discovery relevant to an appeal, an appellant must meet the threshold burden of demonstrating that some measure of appellate inquiry is warranted, and factors to consider include, among other things: (1) whether the defense has made a colorable showing that the evidence or information exists, (2) whether or not the evidence or information sought was previously discoverable with due diligence, (3) whether the putative information is relevant to the appellant's asserted claim or defense, and (4) whether there is a reasonable probability that the result of the proceeding would have been different if the putative information had been disclosed; if an appellant reaches this threshold burden, a CCA then has discretion to determine the best method for obtaining additional evidence
2. when a post-trial claim is inadequate on its face or conclusively refuted by the record, further factfinding by the CCA is unnecessary; the threshold triggering further inquiry should be low, but it must be more than a bare allegation or mere speculation
3. in this case, the CCA did not abuse its discretion in denying most of appellant's appellate bare-bones discovery motion where appellant failed to provide a threshold level of information as to why the requested materials would demonstrate bad faith or malfeasance on the part of the trial counsel who failed to forward the CA's sentence modification to the brig, resulting in appellant serving an extra twenty-six days of confinement; there was no indication of anything nefarious in trial counsel's failure to inform the brig or the government's handling of the error once it was discovered; appellant presented not a scintilla of evidence that the error made by the trial counsel was anything beyond negligence
4. in this case, the CCA erred in granting appellant twenty-six days of pay and allowances as a remedy for his twenty-six days of illegal post-trial confinement because appellant's entitlement to pay and allowances ended upon the announcement of his sentence; the CCA's decision to grant him pay that he was never entitled to fell outside the scope of its Article 66, UCMJ, authority to grant appropriate relief if the accused demonstrates an error in post-trial processing; the authority granted a CCA under Article 66, UCMJ, does not turn the CCAs into courts of equity that can award financial damages to right any wrong when that relief is not otherwise statutorily authorized; in addition, both Article 58b(c), UCMJ, and Article 75(a), UCMJ, only cover restoration of pay or property that was already owed to an accused and therefore were not applicable here; and finally, the fact that the Coast Guard administrative authority agreed to act upon the remedy and give appellant his backpay did not alter whether this decision was within the legal purview of the CCA

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF reviews a CCA's decision on appellate discovery for an abuse of discretion
2. in the abuse of discretion context, when an appeal presents a mixed question of law and fact, the CAAF will find that a military judge abused his or her discretion if the findings of fact are clearly erroneous or the conclusions of law are incorrect
3. the CAAF reviews de novo whether a CCA acted outside the scope of its Article 66 authority

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the CAAF reviews a CCA's decision on appellate discovery for an abuse of discretion
2. military judges abuse their discretion (1) if the findings of fact upon which they predicate their ruling are not supported by the evidence of record, (2) if they use incorrect legal principles, or (3) if their application of the correct legal principles to the facts is clearly unreasonable
3. evaluation of appellate discovery issues involves mixed questions of law and fact
4. in the abuse of discretion context, when an appeal presents a mixed question of law and fact, the CAAF will find that a military judge abused his or her discretion if the findings of fact are clearly erroneous or the conclusions of law are incorrect
5. in a post-trial dispute at a CCA over discovery relevant to an appeal, an appellant must meet the threshold burden of demonstrating that some measure of appellate inquiry is warranted, and factors to consider include, among other things: (1) whether the defense has made a colorable showing that the evidence or information exists, (2) whether or not the evidence or information sought was previously discoverable with due diligence, (3) whether the putative information is relevant to the appellant's asserted claim or defense, and (4) whether there is a reasonable probability that the result of the proceeding would have been different if the putative information had been disclosed; this is a totality of the circumstances test; if an appellant reaches this threshold burden, a CCA then has discretion to determine the best method for obtaining additional evidence
6. when a post-trial claim is inadequate on its face or conclusively refuted by the record, further factfinding by the CCA is unnecessary; the threshold triggering further inquiry should be low, but it must be more than a bare allegation or mere speculation
7. the CAAF reviews de novo whether a CCA acted outside the scope of its Article 66 authority