Appears the Hennis capital court-martial members panel is down to 10 (half enlisted) after both sides exercised 1 peremptory challenge yesterday, see FayObserver coverage here. The court resumes today with six new potential members to interview, 3 officer and 3 enlisted.

This SCOTUSblog post discusses recent revisions to the Supreme Court’s rules.

For those of us who are appellate practitioners, Gene Fidell’s guide to CAAF’s rules is a necessary piece of equipment.  As announced on NIMJ’s blog, here, a brand new 13th edition of the guide is now posted here.

Here’s a link to retired Master Sergeant Timothy Hennis’s latest filing in support of his habeas petition attempting to halt his capital court-martial at Fort Bragg.  As we noted here, U.S. District Court Judge Boyle ordered additional briefing on the habeas petition.  The Respondents’ additional brief is here.  The petition is now ripe for a ruling.

There wasn’t a “this is all off the record” statement so I’ll share with you some thoughts about today’s CAAF Conference generally and the presenters comments. 

At least one other attendee and I were both rather surprised at the relative absence of the service appellate shops from the conference.  Considering the line up at the CAAF Conference, that was surprising.  While The Honorable Jeh Johnson and Togo West were not speaking on how to have your petition accepted by the CAAF judges, there talks were relevant and topical for judge advocate and, generally, military lawyer professional development.  Further, I thought the talk by CAPT Crawford (Legal Counsel to the CJCS) that focused on detainee and similar issues was very thoughtful and something that, at a minimum,  judge advocates involved in the military commission process would find helpful.   Two of the five other speakers today were wheelhouse speakers for military law litigators, Judge McAuliffe on persuasive advocacy and Professor Donohue on the State Secrets Doctrine. 

As for the actual presentations, the best line of the day came from Mr. Johnson who said that leading by example in a nation of laws meant playing by the rules when the going is easy and when it is hard.   I had to chuckle though when Mr. Johnson alluded to the tanker competition as another one of the issues on his plate, in light of recent developments. 

If I have more time later I’ll update this with more from the first half of the day.  Maybe Mizer can give you an update on the second half of the day

ACCA is hearing a case this week.  On Friday, ACCA will hear oral argument in United States v. Thompson, No. ARMY 20071253, on these two assignments of error:

II.  THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT A FINDING THAT APPELLANT COMMITTED ANY OF THE ACTS FOR WHICH HE STANDS CONVICTED

III.  THE MILITARY JUDGE COMMITTED LEGAL ERROR WHEN SHE IMPROPERLY ADMITTED THE ONLY EVIDENCE PURPORTEDLY TYING APPELLANT TO THE SCENE OF THE CRIME

CAAF issued a per curiam opinion today affirming the findings and sentence in United States v. Craig, No. 09-0759/NA.

CAAF explains that it “granted review to consider whether the military judge committed plain error by not sua sponte declaring that the offenses of receiving and possessing the same child pornography were multiplicious.”  Id., slip op. at 2. 

NMCCA had held that because the offenses weren’t facially duplicative, the multiplicity challenge was waived by the accused’s unconditional guilty pleas.  CAAF agreed, applying its decision in United States v. Campbell, 68 M.J. 217 (C.A.A.F. 2009). 

So just as we must await a case in which a TC actually attacks the qualifications of a government-selected substitute expert before getting an answer to one of the granted issues in Anderson, we must await a case in which the issue is properly preserved to know whether multiple charges for possessing the same image of child pornography on multiple media are multiplicious.  [Please note that this observation isn't meant to be critical; the development of the law depends on properly preserved issues being advocated by parties with a stake in the outcome.  I'm simply noting that those issues are still unresolved.]

The convening authority in the case of United States v. Specialist Ivette Davis has reportedly referred it to a capital general court-martial. 

h/t:  Phil Cave’s Court-Martial Trial Practice blog

CAAF yesterday granted review of this issue:  “WHETHER THE CHIEF JUDGE OF THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY REFERRING THIS CASE OVER WHICH SHE PRESIDED AS THE TRIAL JUDGE TO A SPECIAL PANEL OF THAT COURT AND NAMING THE MEMBERS OF THAT SPECIAL PANEL.”  United States v. Thornton, __ M.J. __, No. 10-0179/AF (C.A.A.F. March 8, 2010).

CAAF ordered that no briefs will be filed.  My guess is that means that Thornton’s outcome will be affected by the pending case of United States v. Roach, No. 07-0870/AF.

[Disclosure:  I'm an appellate defense counsel in both Thornton and Roach.]

Here is a link to a recent ABA Section of Public Contract Law comment on a new DoD procurement rule (what’s known as a Class Deviation that has the effect of changing a mandatory contract clause for certain DoD contracts).  The reason I even stray into the area of government contracts, my everyday area of practice, is that the rule requires government “contractors” to  report any/all UCMJ and MEJA offenses to the government.  Here is the language:

(a) The Contractor shall report to the appropriate investigative authorities any alleged offenses under–

(1) The Uniform Code of Military Justice (chapter 47 of title 10, United States Code) (applicable to contractors serving with or accompanying an armed force in the field during a declared war or a contingency operation); or

(2) The Military Extraterritorial Jurisdiction Act (chapter 212 of title 18, United States Code).

DoD’s broad interpretation of the UCMJ as it applies to civilians “in the field” under Art. 2(a)(10), to mean “a military operation with a view toward the enemy(purpose), not [a] locality,” makes this clause astoundingly broad.  Also, because the clause lacks a definition of contractor, the letter cites United States v. Serianne, No. 200900330, __ M.J. __ (N-M Ct. Crim. App. Nov. 25, 2009) (FYI, I added the cite) to highlight the potential self incrimination issues in the regulation.  See our prior Serianne posts here and here–among others.  Just something those military justice buffs in Iraq and Afghanistan might want to think about.

Update:  For JO’C’s benefit, here is a link to a summary (at pg. 5) of the Bob Reed “in the field” definition, one also included in a CAAF Conference presentation a few years back, see post here.