Judicial Appointment Delays Gutierrez Appeal

December 9, 2013

UPDATE – One week before the US military’s highest court was scheduled to review evidence used to convict USAF Sgt. David Gutierrez, the court cancelled the hearing.  Convicted in 2010 of adultery and not disclosing his HIV “positive” status to his sex partners, Gutierrez, 44, is serving an eight-year sentence at Fort Leavenworth prison.

PMseal3Over sixty Air Force cases were summarily set aside by the U.S. Court of Appeals for the Armed Forces (CAAF) and remanded back to the Court of Criminal Appeals because one of the appellate judges, Lawrence M. Soybel, was “unconstitutionally appointed,” according to the National Institute of Military Justice.  “Presumably there will be more cases that will be sent back to AFCCA soon for reconsideration,” NIMJ notes.

The question is whether Soybel, a retired Air Force major, was properly appointed to serve on AFCCA as a civilian (and not retired recalled to active duty).  Appointed to the court by DOD Secretary Chuck Hagel in 2012, Soybel’s participation as a judge was first challenged in July 2013 after he authored an opinion upholding the conviction of another USAF Technical Sergeant.

“There is nothing in 5 U.S. Code 3101 that purports to give the Secretary of Defense this special appointment power – the authority is limited to employing personnel, and not officers,” defense attorney Philip D. Cave argued in a motion to vacate the court’s decision. “The Secretary is not given the power to appoint, but merely the power to recommend.”

In his 2012 letter of appointment, Secretary Hagel wrote: “this appointment will terminate upon my direction or when Mr. Soybel is no longer employed by the Department of the Air Force.”  In his brief, attorney Cave countered: “Mr. Soybel is beholden to the Secretary of Defense for his appointment directly…and it lacks reasonable indications of independence.”  Cave has requested the court to furnish the decisions in 35 other military cases decided during Soybel’s tenure.

On December 16, 2013, the highest U.S. military court in the country planned to review HIV (and other) evidence to determine whether it was sufficient to convict Gutierrez.  Medical experts with OMSJ, a non-profit investigative agency that provides medical, scientific, and legal support to victims of unapproved and unreliable medical and scientific practices, reviewed Gutierrez’ medical records and found that the results could not prove infection with any degree of medical or scientific certainty.

“This one case has the potential to remap the entire landscape of HIV testing and prosecution in the United States military,” said Gutierrez attorney Kevin B. McDermott, “and now it will take at least six months before the case is reviewed by the high court again.

For more about this case, visit OMSJ.org.

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