Here is Col Sullivan's take regarding our ability to file motions anew in US v. Scarselli. Christian P. Hur Captain, USMC Senior Defense Counsel Telephone: (619) 524-8713 Fax: (619) 524-6784 Address: Defense Section, Bldg 12, 1st Floor, MCRD, San Diego, CA 92140 This email may contain Attorney Work Product. Please delete if you received this message in error. -----Original Message----- From: Baker LtCol John Sent: Friday, November 19, 2010 8:48 To: 'Dwight.Sullivan@pentagon.af.mil'; Hur Capt Christian P Subject: Re: Question Sir - Thank you. ----- Original Message ----- From: Sullivan, Dwight H CIV USAF AFLOA/JAJA <Dwight.Sullivan@pentagon.af.mil> To: Baker LtCol John Sent: Fri Nov 19 11:34:18 2010 Subject: RE: Question Under the law of the case doctrine, there would likely be two classes of such rulings. If a ruling could have been appealed but wasn't, the law of the case doctrine would apply, under which the ruling should generally be adhered to during any renewed proceeding. See, e.g., United States v. Erickson, 65 M.J. 221, 224 n.1 (C.A.A.F. 2007) (âWhere 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.â). So, for example, if the MJ issuing a ruling dismissing charges or suppressing evidence that would have allowed the government to file an Article 62 appeal but the government didn't do so, the law of the case doctrine would apply. Under the law of the case doctrine, the ruling should be revisited only if it was clearly erroneous and would work a manifest injustice. Id. (quoting United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002)). But if a ruling couldn't have been the subject of an appeal, then it's up for grabs at a renewed hearing. Semper Fi, DHS -----Original Message----- From: Baker LtCol John [mailto:john.baker1@usmc.mil] Sent: Friday, November 19, 2010 11:24 AM To: Sullivan, Dwight H CIV USAF AFLOA/JAJA Subject: Question At MCRD SD: Query: If MJ orders withdrawal based on improper 34 advice, what happens to the MJ's ruling on prior motions?
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