In 2014, in United States v. Katso, the Air Force Court of Criminal Appeals (AFCCA) reversed an appellant’s convictions of aggravated sexual assault, burglary, and unlawful entry, for which the appellant was sentenced to confinement for ten years, total forfeitures, and a dishonorable discharge. The reversal was based on the AFCCA’s finding that a DNA expert who testified for the government improperly repeated testimonial hearsay. The AFCCA reversed the conviction holding that this error deprived the appellant of his constitutional right to confrontation. While many might think this means that the appellant was immediately released from confinement, this is not true. In order to actually be released from confinement after an appellant wins his case at the CCA, The Judge Advocate General of that service has to certify the case or the time for certification must expire. In Katso, the Air Force TJAG certified the case to the Court of Appeals for the Armed Forces (CAAF) on June 9, 2014. However, Airman Katso was not released from confinement at that time. Instead he remained in confinement until CAAF reviewed his case a year later. During the review, CAAF reversed the AFCCA’s decision regarding the confrontation clause. This reversed Airman Katso’s “win.” However, the AFCCA then determined that Airman Katso was due day for day credit during the time he remained in confinement awaiting CAAF review. In making this decision, the AFCCA relied on a CAAF decision in United States v. Miller in 1997, which requires a hearing be conducted regarding whether or not confinement should continue following the TJAG’s certification of a case. In Airman Katso’s case, the Air Force failed to conduct a hearing seven days after the TJAG’s certification. Therefore, the AFCCA once again gave Airman Katso a “win” by granting him day-for-day credit for the time that he was in confinement awaiting review. The AFCCA gave him a whole year of credit. Today, 5 December 2017, CAAF heard oral argument on whether or not the AFCCA was correct in granting this credit. We will see if Airman Katso actually receives his credit or not. This case shows that just because the court-martial is over, there is still chances to succeed at the appellate level. However, if you are going to successfully appeal your case, you need someone by your side with experience.
