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).
2007 2006 (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). 2002 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). 2000 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). 1999
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).
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. 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).