This week at the Supremes: I’m unaware of any anticipated military justice developments at the Supremes this week.
This week at CAAF: CAAF has no oral arguments scheduled this week. Oral arguments resume on 6 April.
This week at the CCAs: ACCA will hear two oral arguments this week. United States v. Martinez, No. ARMY 20080699, is slated for Wednesday. The intriguing issues to be argued in Martinez are:
I. WHETHER A REASONABLE PERSON WOULD QUESTION THE TRIAL JUDGE’S IMPARTIALITY WHEN A SENIOR MILITARY JUDGE, WHO APPEARED TO HAVE ASSISTED THE GOVERNMENT DURING TRIAL, ENTERED THE TRIAL JUDGE’S CHAMBERS DURING RECESSES AND DELIBERATIONS, IN VIOLATION OF APPELLANT’S RIGHT TO DUE PROCESS.
II. THE OMISSION OF ANY REFERENCE TO THE SENIOR MILITARY JUDGE WHO APPEARED TO HAVE ASSISTED THE GOVERNMENT DURING TRIAL AND ENTERED THE TRIAL JUDGE’S CHAMBERS DURING RECESSES AND DELIBERATIONS MADE THIS RECORD OF TRIAL SUBSTANTIALLY INCOMPLETE IN CONTRAVENTION OF 54(c), UCMJ, AND RULE FOR COURTS-MARTIAL 1103(b)(2)(B), AND WAS A SUBSTANTIAL ERROR.
III. WHETHER THE OFFENSE OF INCAPACITATION FOR DUTY IS NECESSARILY INCLUDED IN OR CLOSELY RELATED TO THE OFFENSE OF DRUNK ON STATION, AND WHETHER THIS COURT MAY AFFIRM THE FINDING OF INCAPACITATION FOR DUTY ON EITHER OF THOSE THEORIES? SEE UNITED STATES v. MILLER, 67 M.J. 385 (C.A.A.F. 2009), BUT SEE UNITED STATES v. HOSKINS, 29 M.J. 402 (C.M.A. 1990).
IV. WHETHER IT WAS PERMISSIBLE FOR THE CONVENING AUTHORITY TO APPROVE A FINDING OF INCAPACITATION FOR DUTY IN LIGHT OF RULE FOR COURTS-MARTIAL 1107(C).
On Thursday, ACCA will hear oral argument in United States v. Lewis, No. ARMY 20061070. The assignment of error to be argued in Lewis is: “THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SUSTAIN THE CONVICTIONS.”
This week at the court-martial trial level: As reported here by the Meridian Record-Journal, General James Mattis–the Commander of U.S. Joint Forces Command–will testify tomorrow at an Article 39(a) session in United States v. Wuterich. General Mattis’s testimony concerns an unlawful command influence motion pending in Wuterich. As we have previously discussed, in 2008 a military judge granted a UCI motion in the related court-martial case of United States v. Chessani, and last year NMCCA upheld that ruling upon the government’s Article 62 appeal. See United States v. Chessani, No. NMCCA 200800299 (N-M. Ct. Crim. App. March 17, 2009). [Familiar disclosure: I was one of SSgt Wuterich’s appellate defense counsel during previous Article 62 appeals in the case.]