20 July 2007

Colonel Murphy 2

In CAAF's Daily Journal for Wednesday 18 July, appears the following:
Misc. No. 07-8018/AF. Michael D. MURPHY, Petitioner v. Major General Robert Smolen, Convening Authority, and Colonel Bruce Ambrose, Investigating Officer, Respondents. CCA 2007-03. Notice is hereby given that a petition for extraordinary relief was filed under Rule 27(a).

As reported here last month, Colonel Murphy was a judge advocate accused of not being licensed to practice law, larceny, AWOL, and making false official statements. There is no mention of the issue involved or whether Colonel Murphy first presented the extraordinary writ to the AFCCA. The AFCCA website appears to be current through 17 July, but I have been unable to find an entry for Colonel Murphy. That suggests Colonel Murphy may have gone directly to CAAF.

As far as I can discover, the Article 32 investigation has not been held yet. That raises a couple of questions.

(1) From the caption of the case, it is clear that Colonel Murphy is protesting against some decision by the convening authority and the IO. What was that decision?

(2) Did Colonel Murphy file at the CCA first? If so, did the AFCCA write an opinion?

Does anyone out there have any answers?


John O'Connor said...

I assume that one of the appellate law denizens around here knows this off the top of his/her head, but does CAAF view itself as having writ jurisdiction over Article 32 investigations that have not been referred to a court-martial?

For this to be a case that could implicate CAAF's review jurisdiction, it wouldn have to be referred to a court-martial; Murphy would have to be convicted; and the sentence would have to exceed the jurisdictional threshold for Article 66 review. This all seems kind of speculative in terms of a basis for writ jurisdiction.

Sacramentum said...

Since Clinton v. Goldsmith, I don't think the CAAF has formally considered an extraordinary writ concerning Article 32 investigations. Of course, before Goldsmith, the CAAF even intervened in an officer case that was referred to a special court-martial, so the accused was not eligible for any sentence that would invoke the CAAF's jurisdiction. See Unger v. Ziemniak, 27 M.J. 349 (C.M.A. 1989) (female Navy officer accused of violating order to provide urine sample under direct observation, claimed the order was illegal because it was humilitating, especially when the observer was enlisted).