This week at the Supremes:  No military justice filings at the Supremes are on our radar, though Rodriguez’s counsel may file a reply to the S.G.’s opp.  We’ll keep an eye out for any such filing.  (We have not insider information as to whether the Rodriguez’s counsel plan to file such a reply.)

This week at CAAF:  Ladies and Gentlemen, start your engines!  The green flag waves at 450 E Street at 0930 tomorrow to start this term’s oral arguments.  And the first argument is a blockbuster:  United States v. Neal, 09-5004/NA.  The Judge Advocate General of the Navy certified six issues in the case:

I.   WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING IT HAD JURISDICTION OVER THIS ARTICLE 62, UCMJ, APPEAL, WHERE THE APPEAL WAS TAKEN AFTER THE CASE WAS ADJOURNED AND THE MEMBERS DISMISSED.

II.  DESPITE THE LANGUAGE OF ARTICLE 120(r), UCMJ, WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT THE ARTICLE DOES NOT PROHIBIT THE ACCUSED FROM INTRODUCING EVIDENCE OF CONSENT IN ORDER TO NEGATE AN ELEMENT OF THE OFFENSE.

III. CONCERNING THE AFFIRMATIVE DEFENSE SET FORTH IN ARTICLE 120(t)(16), WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT CONGRESS CONSTITUTIONALLY ALLOCATED, TO THE ACCUSED, THE BURDEN OF PROVING CONSENT BY A PREPONDERANCE OF THE EVIDENCE.

IV.  WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT “LACK OF CONSENT” IS NOT AN IMPLICIT ELEMENT OF ARTICLE 120 CRIMES, INCLUDING THE CHARGED OFFENSE, GIVEN THE DEFINITION OF “FORCE” IN ARTICLE 120(t)(5), AND THUS ARTICLE 120, UCMJ, DOES NOT UNCONSTITUTIONALLY SHIFT THE BURDEN TO THE ACCUSED TO “DISPROVE AN ELEMENT OF THE OFFENSE.”

V.   WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT THE EVIDENCE TRIGGERED THE AFFIRMATIVE DEFENSE OF CONSENT AS DEFINED IN ARTICLE 120(t)(16), UCMJ, DESPITE THE FACT THAT THE APPELLANT FAILED TO ACKNOWLEDGE THE OBJECTIVE ACTS OF THE ALLEGED OFFENSE.

VI.  WHETHER THE FINAL TWO SENTENCES OF ARTICLE 120(t)(16), UCMJ, WHICH ALLOWS FOR CONSIDERATION AS TO WHETHER THE GOVERNMENT HAS DISPROVED THE AFFIRMATIVE DEFENSE OF CONSENT BEYOND A REASONABLE DOUBT, AFTER THE ACCUSED HAS PROVED THE DEFENSE BY A PREPONDERANCE OF THE EVIDENCE, CREATE A LEGALLY IMPOSSIBLE BURDEN ALLOCATION.

CAAF will hear four more oral arguments on Tuesday and Wednesday.

First up on Tuesday is United States v. Anderson, No. 08-0344/AR, where the granted issues are:

SHOULD THE MILITARY JUDGE HAVE DISMISSED CHARGE III AS PREEMPTED, MULTIPLICIOUS, AND AN UNREASONABLE MULTIPLICATION OF CHARGES; AND THE ADDITIONAL CHARGE AS MULTIPLICIOUS WITH CHARGE I, SPECIFICATION 1, AND AN UNREASONABLE MULTIPLICATION OF CHARGES WITH CHARGE I, SPECIFICATION 2?

WAS APPELLANT AFFORDED A FAIR TRIAL EVEN THOUGH HIS REQUEST FOR A FORENSIC PSYCHIATRIST WAS DENIED AND THE GOVERNMENT THEREAFTER AVAILED ITSELF OF A FORENSIC PSYCHIATRIST AND ATTACKED THE QUALIFICATIONS OF THE VERY EXPERT IT DID MAKE AVAILABLE TO THE DEFENSE?

 Tuesday’s second argument is United States v. Lubasky, No. 09-0043/AR, where the granted issues are:

WHETHER APPELLANT COMMITTED LARCENIES OF M.S.’S PROPERTY BY ENGAGING IN THE UNAUTHORIZED USE OF HER CREDIT, DEBIT, AND ATM CARDS.

WHETHER A VARIANCE AS TO OWNERSHIP IN LARCENY CASES IS FATAL IF THERE IS LEGALLY SUFFICIENT EVIDENCE THAT APPELLANT STILL COMMITTED A LARCENY OF PROPERTY.

Wednesday’s first argument is  United States v. Rose, No. 09-5003/AF [no known relation to Rose 2d of Abalone], where the certified issues are:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN DENYING THE UNITED STATES’ REQUEST THAT THE COURT ORDER AN AFFIDAVIT FROM APPELLEE’S ORIGINAL MILITARY DEFENSE COUNSEL.

WHETHER AN “IMPRESSION” LEFT BY CIVILIAN DEFENSE COUNSEL THAT APPELLEE MAY NOT HAVE TO REGISTER AS A SEX OFFENDER AMOUNTED TO AN AFFIRMATIVE MISREPRESENTATION AND LED TO APPELLEE RECEIVING INEFFECTIVE ASSISTANCE OF COUNSEL.

Wednesday’s second argument is in United States v. Bradley, No. 09-5002/NA, where the certified issues are:

WHETHER THE LOWER COURT ERRED BY FINDING THAT THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE MOTION TO DISQUALIFY TRIAL COUNSEL FROM FURTHER PARTICIPATION IN THE CASE.

WHETHER THE LOWER COURT ERRED IN SETTING ASIDE THE FINDINGS AND SENTENCE BASED UPON SPECULATION THAT THE TRIAL COUNSELS’ CONTINUED PARTICIPATION IN THE CASE COULD HAVE PREJUDICED APPELLEE, WITHOUT MAKING ANY FINDING THAT THEIR CONTINUED PARTICIPATION DID MATERIALLY PREDJUDICE APPELLEE, AS REQUIRED BY ARTICLE 59(a), UCMJ.

There is also a specified issue in Bradley:

WHETHER APPELLEE WAIVED THE ISSUE OF THE DISQUALIFICATION OF THE TRIAL COUNSEL BY HIS UNCONDITIONAL GUILTY PLEAS.

This week at the CCAs:  On Wednesday, ACCA will hear oral argument in United States v. Huff, No. ARMY 20080116.  The issues in Huff are:

I.

WHETHER SGT HUFF WAS DENIED A FAIR TRIAL WHEN THE MILITARY JUDGE REFUSED TO GRANT A MISTRIAL FOLLOWING THE DISCOVERY OF THE VICTIM’S HIGHLY RELEVANT MEDICAL RECORDS.

II.

WHETHER THE MILITARY JUDGE ERRED IN REFUSING TO GRANT A MISTRIAL AND IN CONCLUDING THAT THE UNDISCLOSED EVIDENCE WAS RELEVANT ONLY ON SENTENCING.

III.

WHETHER THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT A CONVICTION OF ATTEMPTED PREMEDITATED MURDER.

On Thursday, AFCCA will hear oral argument in United States v. Bruhn and Creighton University’s law school.  Two issues are being orally argued, but I can’t tell what they are from AFCCA’s web site.  I’ll try to find out tomorrow and post the issues tomorrow night.

This week in CLE:  On Tuesday, NIMJ is sponsoring a panel on the Supreme Court’s opinion in United States v. Denedo, 129 S.Ct. 2213 (2009).  The panel discussion will be held at noon at the American University’s Washington College of Law, Room 503, 4801 Massachusetts Ave. N.W., Washington, DC.  The panelists are Gene Fidell — President of NIMJ and the Florence Rogatz Lecturer in Law at Yale Law School.  Gene was one of Denedo’s counsel at the Supreme Court.  Making Gene’s participation in the panel even more impressive, I believe he’s arguing Andersonat CAAF that morning.  Also on the panel will be Pratik Shah, the Assistant to the Solicitor General who argued Denedo at the Supremes.  The final panelist is moi.  Professor Stephen I. Vladeck of the Washington College of Law is the moderator.  And lunch will be served.  The deadline for RSVPs was Friday, but I’ll bet they can squeeze more in.  If you’re interested in attending, please RSVP to ivayner@wcl.american.edu or (202) 274-4322.

5 Responses to “This week in military justice”

  1. Bill C says:

    I noticed the Court gave each side 20 minutes to argue the six issues in Neal. I hope they can talk really fast.

  2. LTC Slade says:

    Just b/c the court granted six doesn’t mean they want to hear all six at argument. I’ll bet there’s one or two that will eat up the time.

  3. Bridget says:

    Hmm. AFCCA at my undergrad alma mater, Creighton. Chosen because Offutt is nearby? Chosen because it is Jesuit, the better for jesuitical argument? Because they asked? Just curious how they choose the forum – not at all objecting.

  4. Comrade Cossio says:

    Wow, everything deleted, tabula rasa !!!

  5. Comrade Cossio says:

    So I take it you most have some sort of filter? Or do you do a search of anything “Cossio”. I had some real gems over the years.