Audio of yesterday’s oral argument in United States v. Serianne, No. 10-5001/NA, is now available here.  Audio of yesterday’s oral argument in United States v. Diaz, No. 09-0535/NA, is now available hereDiaz was originally supposed to be argued at Pepperdine University’s law school.  CAAF had granted a motion to allow a Pepperdine law student to take part in the oral argument.  But yesterday’s argument didn’t include an amicus presentation.  I know I’ve beat this drum before, but if an amicus doesn’t care enough about a case to show up and argue wherever the argument occurs, I don’t think the court should care about that amicus’s views.

9 Responses to “Yesterday’s CAAF arguments now online”

  1. Anonymous says:

    Which judge tore into Diaz’s defense counsel so soon? You could sense where he comes down on this case. Was it Stukey?

  2. Steve Dallas says:

    You are correct sir.

  3. Anonymous says:

    I thought it was Erdman, but I’m not that familiar with this court. A schlemiel?

  4. John O'Connor says:

    It’s an interesting argument that the Government charged the same conduct under Article 133 and the Espionage Act but, relying on MRE 403, should get to take away one of your defenses to the Article 133 charge because it would confuse the membwers to let you have the defense.

  5. Anonymous says:

    JOC, I concur. The classic having your cake and eating it too. And the 403 argument was an afterthought – I gathered 403 wasn’t even argued at trial. If not 403, then harmless beyond a reasonable doubt. Seems so unfair to allow the govt to charge this way, get their conviction, then merely ask the court to dismiss the ill-begotten conviction, after the damage was done.

  6. Publius says:

    It appears the defense has a decent argument on the Article 133 offense. After all doing the honorable thing is what the offense is all about. But I can’t see how this motive evidence is admissible on the issue of intent with regard to the charge alleging a violation of the federal statute. The defense counsel misstated the holding of the federal cases she cited in oral argument. They do not say that wilfullness under 793(d) requires bad faith. If CAAF decides the evidence of motive should have been admitted on the Article 133 allegation and overturn that conviction, how would that be unfair. It seems to me that would cure the error, especially since the military judge merged the offenses for sentencing.

  7. Anonymous says:

    Publlius, defense counsel did not misstate those cases. Read Gorin’s “delimiting words” language. Read Truong Dihn Hung and Rosen. Of course, Stucky’s comment about the U.S. Supreme Court reveals that he could care less about how federal courts interpret federal statutes. I’ve heard he was a govt hack, and this audio proves it. Regardless, the govt was allowed to present evidence from which the jury was asked to then infer the defendant’s intent or reason to believe, but the defense could not present any evidence to show what he really intended or had reason to believe. So, it’s unfair that he couldn’t present a defense to the 793 offense itself, but the unfairness was compounded when he couldn’t present any evidence on the “under the circumstances” element of 133, especially when the govt chose to charge the way they did. Even if the evidence didn’t come in for 793 purposes, it should have come in for 133 purposes. Then the jury would have known all the facts and there’d probably be a different result. The light confinement sentence indicates the jury’s understanding of the case, but all that evidence came in after the damage was done at the findings phase.

  8. anonymous says:

    Not fair to call Judge Stucky a governemnt hack. He has joined and written many an opinion favorable to the defense.

  9. Justin says:

    I was one of the trial defense counsel. (And, this being My Greatest Hits week at CAAF, I was the trial counsel who drafted charges in Serianne.)

    I can tell you what I thought at the time of trial, and how we approached the defense: leaving aside any question of the propriety of surreptitiously sending this list, were its central contents being closely held because of (A) their classification level, or (B) their being a necessary precursor to the detainees’ receiving legal counsel? Now, if (A), that’s a tough case to defend against. But if LCDR Diaz *thought* (B), well … can he explain why he thought that? The answer, of course, was, No, not until sentencing.

    FOUR YEARS ON… is there anyone out there who doubts the answer to predicate question? I’d really like to know. As of yet — and I’ve been following this issue very, very closely — I’ve never read or heard a sound reason for not allowing these detainees, almost 3/4 of whom have been released without charge, to have access to counsel from 2002-2006.