This week at the Supremes: There are no anticipated military justice developments at SCOTUS on our radar screen. We continue to await the SG’s response to the cert petition in Loving v. United States, No. 09-989.
This week at CAAF: CAAF has no oral arguments scheduled this week.
This week at the CCAs: NMCCA will hear oral argument in two cases this week. The issues in United States v. Hutchins, to be orally argued before an en banc court tomorrow, are:
I. WHETHER THE ABSENCE OF CAPTAIN BASS, USMC, AT TRIAL RESULTED FROM:
A. HIS EXCUSAL WITH THE APPELLANT’S EXPRESS CONSENT,
B. HIS APPLICATION FOR WITHDRAWAL RULED UPON BY THE MILITARY JUDGE FOR GOOD CAUSE SHOWN,
C. OTHER GOOD CAUSE SHOWN ON THE RECORD, OR
D. SOME OTHER MECHANISM TO INCLUDE, BUT NOT LIMITED TO, IMPROPER/IRREGULAR WITHDRAWAL OF COUNSEL (See United States v. Acton, 38 M.J. 330, 337 (C.M.A. 1995)), OR INEFFECTIVE ASSISTANCE OF COUNSEL?
II. IF CAPT BASS’ ABSENCE FROM TRIAL STEMMED FROM OR THROUGH SOME MECHANISM OTHER THAN (A) – (C) ABOVE, MAY THIS COURT TEST THE RAMIFICATIONS OF HIS ABSENCE FOR PREJUDICE? IF SO, HOW?
The issues to be argued in United States v. Warner on Wednesday are:
I. WHETHER APPELLANT’S CONVICTION TO ATTEMPTED MURDER IS FACTUALLY AND LEGALLY INSUFFICIENT DUE TO THE ALLEGED OVERT ACTS BEING MERELY PREPATORY IN NATURE AND NOT SUBSTANTIAL STEPS TOWARD COMMISSION OF THE OFFENSE.
III. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY PERMITTING IMPERMISSIBLE MRE 404(b) PROPENSITY EVIDENCE TO BE PRESENTED TO THE MEMBERS.
On Tuesday, ACCA will hear oral argument in United States v. Johnson, No. 20081165, where the issue is:
WHETHER THERE IS A SUBSTANTIAL BASIS IN LAW AND FACT TO QUESTION APPELLANT’S PLEA TO POSSESSION OF CHILD PORNOGRAPHY IN VIOLATION OF 18 U.S.C. § 2252A(a)(5)(B) WHERE DURING APPELLANT’S GUILTY PLEA (1) THE MILITARY JUDGE ADVISED APPELLANT OF AND ENGAGED IN A COLLOQUY WITH APPELLANT CONCERNING THE ELEMENTS FOR 18 U.S.C. 2252A(a)(5)(A); (2) APPELLANT AFFIRMATIVELY DISCLAIMED HIS CONDUCT AS PREJUDICIAL TO GOOD ORDER AND DISCIPLINE UNDER CLAUSE 1, ARTICLE 134, UCMJ; AND (3) THE ONLY FACTUAL PREDICATE FOR CLAUSE 2, ARTICLE 134, UCMJ IS APPELLANT’S STATEMENT THAT HIS CONDUCT WAS SERVICE-DISCREDITING BECAUSE “IT PUTS A BAD LIGHT ON EVERYBODY IN MY UNIT, YOUR HONOR.”
This week at CAAFlog: I’m hitting the road tomorrow and will have very limited access to the Internet until Saturday. So expect to hear nothing from me but a whole lot from my CAAFlog colleagues this week.