TRIAL STAGES:Appeals: Law of the Case

2013 (September Term)

United States v. Danylo, 73 M.J. 183 (the law of the case doctrine states that a trial court is bound by the ruling of a higher appellate court remanding the case). 

2010 (September Term)

United States v. Savala, 70 M.J. 70 (when a party does not appeal a ruling, the ruling of the lower court normally becomes the law of the case). 

(the law-of-the-case doctrine involves the exercise of appellate discretion rather than binding legal doctrine; the law-of-the-case doctrine does not preclude an appellate court from examining the legal ruling of a subordinate court in a case where the JAG has not certified the issue; however, such a court is reluctant to exercise this power and, as a rule, reserves it for those cases where the lower court’s decision is clearly erroneous and would work a manifest injustice if the parties were bound by it). 


United States v. Erickson, 65 M.J. 221 (where neither party appeals a ruling of the court below, that ruling will normally be regarded as law of the case and binding upon the parties; where there is no appeal, a superior court will not review the lower court’s ruling unless the lower court’s decision is clearly erroneous and would work a manifest injustice if the parties were bound by it).


United States v. Lewis, 63 M.J. 405 (where neither party appeals a ruling of the court below, that ruling will normally be regarded as law of the case and binding upon the parties).

(the law of the case doctrine is a matter of discretionary appellate policy and does not prohibit a higher appellate court from reviewing the ruling of the court below). 


(the lower court’s determination that there was unlawful command influence was the law of this case, and a higher appellate court will not review that determination where the government did not carry its burden of establishing that the ruling of lower court was clearly erroneous or that adhering to its ruling would create a manifest injustice). 


United States v. Parker, 62 M.J. 459 (when a party does not appeal a ruling, the ruling of the lower court normally becomes the law of the case; the law-of-the-case doctrine, however, is a matter of appellate policy, not a binding legal doctrine; because the law-of-the-case doctrine is discretionary, it need not be applied when the lower court’s decision is clearly erroneous and would work a manifest injustice). 


(given the discretionary nature of the law-of-the-case doctrine, an appellate court will decline to apply it in a manner that would be contrary to the sound administration of justice). 


(applying the law-of-the-case doctrine would be manifestly unjust under the circumstances of the present appeal where the Government had little incentive to appeal, where the decision of the court below was clearly erroneous, and where reliance on the doctrine would permit appellant to benefit from that erroneous ruling and require a convening authority to provide appellant with the very relief that he had rejected on numerous occasions). 


United States v. Wolford, 62 M.J. 418 (if instructional error is found and there are constitutional dimensions at play, the instructional claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt; the inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to the accused’s conviction or sentence). 


(in this case, the military judge erred in his affirmative defense instruction with respect to sending, receiving, and reproducing child pornography by using the phrase “conveys the impression,” language found by the Supreme Court to be unconstitutional; however, this error was harmless beyond a reasonable doubt where there was no evidence in the record of a possible affirmative defense and the defense counsel agreed that no instruction was needed).


United States v. Gaston, 62 M.J. 404 (the military judge’s error in finding the accused guilty of a UA terminated by apprehension rather than a UA terminated by surrender was harmless as to sentencing where this change had no impact on the maximum authorized sentence in this case which was limited by the jurisdiction of a SPCM and where in arguing on sentencing, trial counsel did not focus on the nature of the accused’s return to military control). 


United States v. Gonzalez, 62 M.J. 303 (harmless beyond a reasonable doubt is a high standard, but it is not an impossible standard for the government to meet). 


(the government’s failure in a urinalysis drug use case to turn over a laboratory discrepancy report is error and will be treated as prejudicial error when the other available evidence does not constitute independent evidence of illegal drug use; where there is sufficient independent evidence of illegal drug use, the government’s error may be treated as harmless). 


(in this drug use case, the government’s failure to turn over a laboratory discrepancy report was erroneous, but the error was harmless beyond a reasonable doubt where in addition to the positive drug test, the prosecution introduced independent evidence of drug use including evidence that appellant had drug paraphernalia associated with the drug both in his car and at his work station, that he had used this paraphernalia, that he admitted that he had attended at least one rave party and had fliers for thirteen rave parties in his car, and that he also admitted to prior drug use and to possession; although the missing discrepancy report may have raised some questions about the accuracy of the testing process at the lab, appellant’s urine sample was subjected to four different tests, each of which showed positive for drug use; when the missing report is balanced with the evidence arrayed against appellant, the scales tip strongly in favor of his conviction; furthermore, although the discrepancy report was not produced, the defense counsel had sufficient information to attack the reliability of the laboratory testing process when during the cross-examination of the government expert, the defense counsel elicited testimony that approximately two percent of internal blind aliquots were reported as false positives or with other incorrect results; while the government’s failure to produce the discrepancy report remains error, the evidence the defense would have introduced if it had the discrepancy report would have been to some degree cumulative of the overall false positive rate already in evidence; accordingly, it is unlikely that the missing discrepancy report would have had a substantial impact on the findings in light of the four different positive test results that were also in evidence). 


(in this case, appellant did not receive ineffective assistance of counsel because there was no reasonable probability that a missing laboratory discrepancy report would have produced a different result if counsel had requested a copy; there was enough independent evidence that appellant used the alleged drug that his counsel’s  failure to identify and request a copy of the report was not prejudicial; because appellant had not established that his counsel’s performance prejudiced the outcome of his case, he had not established that his Sixth Amendment right to counsel was violated). 


United States v. Lonnette, 62 M.J. 296 (if a servicemember on appeal alleges error in the application of a sentence that involves forfeitures, the servicemember must demonstrate that the alleged error was prejudicial; to establish prejudice, an appellant bears the burden of demonstrating that he or she was entitled to pay and allowances at the time of the alleged error).


(in this case, appellant failed to meet his burden of demonstrating that he was entitled to pay and allowances when the convening authority approved forfeiture of all pay and allowances after he was released from confinement; the critical data regarding entitlement to pay and allowances involves information that is well within the personal knowledge of members of the armed forces -- that is, the date of release from confinement, the commencement date of any voluntary excess leave, and the termination date of an obligated period of service; to the extent that a servicemember is unable to recall specific dates, the data normally is retained in military records; appellant has not alleged that he was unable to recall these dates, that he attempted to obtain the appropriate military records, or that he was unable to obtain access to any records; he has not provided the information necessary to determine whether he was entitled to pay and allowances on the pertinent dates; accordingly, he has not established prejudice under Article 59(a)).


(in this case, on the date appellant was released from confinement, his duty status was changed to present for duty; however, forty-five minutes later, he was placed on voluntary excess leave; a servicemember on voluntary excess leave is not entitled to pay and allowances; appellant has not presented any evidence that he subsequently entered a status for which he would have been entitled to pay and allowances; assuming that appellant was on active duty for forty-five minutes, the burden is on him to demonstrate that he was entitled to pay and allowances on that date, that forfeitures were erroneously taken, and that if there was error, it was prejudicial; appellant has not done so; the speculative possibility that appellant might have been entitled to an undefined amount of pay and allowances on a single day is not sufficient to establish prejudice under Article 59(a)).  


United States v. Capers, 62 M.J. 268 (with respect to an error in an SJA’s post-trial recommendation, the prejudice prong involves a relatively low threshold -- a demonstration of some colorable showing of possible prejudice; although the colorable showing threshold is low, the prejudice must bear a reasonable relationship to the error, and it must involve a reasonably available remedy). 


(given his inability to identify a reasonably available alternative remedy related to the SJA’s erroneous advice with respect to forfeitures, appellant failed to make a colorable showing of possible prejudice). 

United States v. Rosenthal, 62 M.J. 261 (error in failing to submit post-trial clemency matter is tested for prejudice; because clemency is a highly discretionary Executive function, there is material prejudice to the substantial rights of an appellant if there is an error and the appellant makes some colorable showing of possible prejudice; appellant’s unrebutted affidavit provides evidence relevant to clemency regarding changes in appellant’s circumstances during the two-year period between the convening authority’s first and second actions; appellant stated that he had matured, ceased his drug use, was studying for a commodity broker’s license, and wished to stay in the Marine Corps; the decision as to whether any or all of these matters would warrant clemency is a matter committed to the discretion of the convening authority under Article 60(c), UCMJ, 10 USC § 860(c), and RCM 1107; for purpose of this appeal, appellant has demonstrated a colorable showing of possible prejudice).



United States v. Alameda, 57 MJ 190 (where government has not contested holding by court below held that certain evidence was not sufficiently connected to appellant to be relevant, and where reviewing court is satisfied that it is not clearly erroneous, nor would it work a manifest injustice if the parties were bound by it, the holding by the court below is the law of the case).


United States v. George, 52 MJ 259 (where court below concluded that military judge erred, and the government conceded that the prosecution committed constitutional error by smuggling hearsay into the sentencing proceeding, the lower court’s conclusion that the military judge erred is the law of the case).


United States v. Riley
, 50 MJ 410 (where Court of Criminal Appeals found evidence factually insufficient to support conviction of unpremeditated murder, lesser offenses relying on theory of culpability not presented to the trier of fact may not be affirmed as a matter of due process).

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