Army Court Drastically Changes Decades of Appellate Military Justice Practice
On 7 September 2017, the Army Court of Criminal Appeals upended decades of appellate military justice practice without any warning to the Defense Appellate Division, the Government Appellate Division, and the civilian appellate defense counsel who regularly practice and appear before that Court. In United States v. Tovar-Chavez, the Army Court has now decided that documents and other materials in the Pretrial and Allied Papers section of the Record of Trial, as well as any other “attached matters” now require certification or authentication. The Army Court appears to suggest that parties must either have the military judge certify or authenticate these matters before the Record of Trial is authenticated; stipulate to the authenticity of the documents; file a motion on appeal for the Army Court to consider the documents; or obtain an affidavit or some other sworn declaration that the matter is what a party says it is. For practical purposes, this means that cases involving claims of Ineffective Assistance of Counsel (IAC) will now require affidavits or some other sworn declaration from every relevant witness for that issue on appeal. The Army Court bent over backwards to distinguish this issue from its review of sentence appropriateness, which does not require the authentication of post-trial matters, but the fact remains that the Army Court issued this decision in a vacuum with no advance warning to appellate military justice practitioners who now must conform to this guidance. Furthermore, the Army Court issued this guidance via an unpublished Memorandum Opinion, which does not carry the weight of precedent, instead of an Opinion of the Court, which does. Therefore, the Army Court has left open the question of whether this guidance applies only to cases before this 3 judge panel or to the entire Army Court of Criminal Appeals.