Here is a link to CAAF’s announcement of the Serianne argument scheduled for March 2, 2010 at 9:30 a.m.  Here and here are links to our prior coverage of the case.  The certified issues in the case are:

(1) whether the Navy-Marine Corps Court of Criminal Appeals erroneously held that the duty imposed on sailors by Chief of Naval Operations Instruction 5350.4C to notify their commanding officer of an arrest by civil authority for an alcohol-related offense compelled a testimonial communication that was incriminating; and

(2) whether the Navy-Marine Corps Court of Criminal Appeals erroneously held that no exception to the Fifth Amendment self-incrimination clause, including the regulatory exception developed in California v. Byers , applies to the reporting requirement in Chief of Naval Operations Instruction 5350.4C

The case of LCDR Matthew Diaz is also set for argument following the Serianne argument.  If you don’t know what Diaz is about, (a) you have been in a hole for the last few years and (b) well here are the issues:

(1) whether the lower courts misread the scienter and national security elements of the Espionage Act;

(2) whether the military judge abused his discretion in rejecting as irregular Appellant’s proferred guilty plea to a violation of Article 133;

(3) whether the evidence of the circumstances under which an accused acted, including his motive, is relevant to a charge under Article 133.

If you will recall the Diaz argument at Pepperdine Law School was snowed out in February–how odd does that sentence sound?  The argument doesn’t say anything about counsel from Pepperdine Law participating.

9 Responses to “Serianne and Diaz Set for Argument March 2, 2010”

  1. Some Random 1L says:

    CHALLENGE: Cite me one case from any jurisdiction holding that the mere fact that you were arrested by a police officer is an “incriminatory statement.”

    I think this is really, really dumb.

  2. any mouse says:

    Granted it is administrative rather than criminal, I have seen a written citation for underage drinking issued by local police turned into a 6105 entry that was later used as one of the entries for a pattern of misconduct separation basis.

    It isn’t outlandish to think that if the police dept and base didn’t have a good working relationship (say I work at Lejeune but got a written arrest for underage drinking while on leave in Podunk, South Dakota), but for me telling my CO, the Marine Corps might never find out about it.

    Would you consider that incriminating if it could lead to me receiving an OTH discharge?

  3. Cheap Seats says:

    Having been an SJA to units where NJP refusal is not an option, I will tell you that it was ROUTINE to NJP after these reports. The report would trigger us in legal to go get the police report and take the sailor to mast. But for the self-report, we would not have known about many of them.

  4. Superdave 8251 says:

    The incident happend out in town and has been adjudicated by the state of Maryland. Why is the Navy pressing the issue and wasting the government’s time and money. Serianne was supposed to retire last year. It just seems small potatoes to me. They are letting the Senior Chief dog handler retire, no court martial. I just don’t get it.

  5. No Man says:

    Super D: There is a not inconsequential legal principle at stake here. While it may not be the case here, in the past when a senior enlsited individual has been taken to court-martial for soemthing like DUI it wasn’t becasue the CA was hard on first offenders. I am not speaking about Chief Serianne, but, rather, I am commenting on calling this type of case small potatotes and a waste of time as that may not always be true.

  6. any mouse rebuttal says:

    Any mouse, I agree with you in pincipal but not in law. Just because a statement may have incriminatory consequences does not make it incriminatory under 5th Amendment jurisprudence. For example, requiring a service member to identify himself at the scene of the crime does not invoke the requirement for 31b or Miranda rights. However, by identifying himself he has sent in motion a chain of events that could lead to his arrest and possible prosecution.

  7. Anonymous says:

    What’s all this talk about “incriminatory” statements and consequences? Shouldn’t that be “incriminating?”.

    The other injustice represented by these two cases is how a true patriot who stands for American values is now labeled a spy.

  8. Anonymous says:

    If it was “really really dumb” then I don’t think CAAF would have bothered granting.

    Doesn’t mean it’s right, but that it isn’t “really really dumb.”

  9. Superdave 8251 says:

    No Man: I guess small potatoes is the wrong term. What I was getting at is when does Big Navy step and say why are we prosecuting this. When do they take it out of the CA’s hands. Chief Serianne was not convicted and no accident was involved. I’m pretty sure if cooler heads prevailed and waited for the the outcome of the jurisdiction in which the incident occured (State of Maryland)not U.S. Naval soil, instead of trying to take the Chief to NJP a week after the alleged incident occured and giving him his due process rights. Everyone knows that NJP is a kangaroo’s court, they do not have to prove anything!!! Whatever happend to innocent until proven guilty?