03 August 2007

Colonel Murphy at the AFCCA

It now seems apparent that the Air Force Court of Criminal Appeals is purposely suppressing the posting of its opinion in Colonel Murphy's petition for extraordinary relief against the convening authority and the Article 32 investigating officer. It is now several days after CAAF released notification that it had denied the writ-appeal, and several weeks after the writ-appeal was filed at CAAF, and the AFCCA still has not posted its opinion.

In an earlier comment to a posting on CAAFlog, former Air Force Appellate Judge Christopher Mathews noted that not all orders or extraordinary writ decisions are posted on the AFCCA website. Accepting that as true, we still must presume that the AFCCA makes informed choices about which opinions to post and which ones not to post. After all, the AFCCA posts all manner of decisions, including published, unpublished, decisions on writs (Misc. Dkt.), and even cases submitted to the court without assignment of error (Merits) in which the court regularly affirms with a 1 or 2 sentence pro forma opinion. Furthermore, although he didn't fully explain, CAAFlog--a man of not inconsiderable resources--"swung and missed at trying to get information about the writ."

Therefore, I conclude the failure of the opinion to appear on the AFCCA website is purposeful. It may not be surprising in light of the Air Force's prior dealings with JAGs who are accused of wrongdoing.


Gene Fidell said...

First, congratulations on this intelligent blog, which is a welcome addition to the field. Let a hundred flowers bloom. On the matter at hand, I have no reason to believe this particular decision is being withheld from public view, and I would counsel against hasty assumptions that may be quite unfounded. That said, I do think this and other posts here and on CAAFlog raise serious questions about access to law. Given the amazing technological advances with which we are all familiar, I simply cannot understand why the retrieval of military justice case law continues to be so sluggish and haphazard. Why not one big [yes, purple] website, folks?

Sacramentum said...

Thanks for the kind words. Although my conclusion may have been rendered without having all of the evidence, one would think the Air Force would want to make the Murphy case transparent after the Fiscus fiasco.

Your comments on the posting of decisions is well worth the military considering. I also note that some of the services post the decisions in pdf while others use Word. Personally, I believe the pdf format works the best.

I notice that the services seem to handle the electronic posting of decisions very differently. With the exception as noted, the Air Force seems to post everything. The Army posts very few cases, and on occasion seems to remove some they have posted. I haven't been able to figure out what the Navy-Marine Corps Court's policy is, but I note they seem to post opinions on the NKO site well before posting them on their public website.

I thought that one of the main reasons for posting on a website was to comply with the Freedom of Information Act--having to make an index available to the public. If that is the case, it appears only the Air Force does so. That is probably why they post merits cases there--as they contain no facts or discussion of the law, there is no other reason to do so.

By the way, what is it with DoD and website certification? As noted at CAAFlog some time ago, the Air Force site was difficult to get into without resetting the security on the web browser. I've noted the same thing occurs with the other services from time to time. But his problem has been going on with DoD websites for years.

Christopher Mathews said...

The AFCCA opinion is now online: https://afcca.law.af.mil/content/afcca_opinions/cp/murphy_misc_doc_2007-03.pdf