This week at the Supremes: There are no anticipated military justice developments at the Supremes this week on my radar screen. I believe that there are four military cert petitions pending on the Supremes’ docket. In Loving, No. 09-989, the SG’s response is currently due on 23 July. (The SCOTUS rules don’t provide a respondent with the option of waiving reply in capital cases.) In Neal, the Court called for a response from the SG. It’s currently due on 6 August. In Clayton, No. 09-1532, the SG waived response and so far there’s been no call for a response; the petition has been distributed for the 27 September conference. Finally, in Smith, No. 10-18, the SG’s response is currently due on 30 July. In recent years, it’s been the SG’s invariable practice to waive response to military cert petitions in non-capital cases. Given both the legal luminaries who represent Cadet Smith and the substantial circuit split that the cert petition raises, it’ll be interesting to see whether the SG files a response to the Smith cert petition.
This week at CAAF: CAAF has completed its oral arguments for the term. Two argued cases remain undecided: Nerad, No. 09-5006/AF, and Diaz, No. 09-0535/NA.
This week at the CCAs: On Thursday, NMCCA will hear oral argument in United States v. Soucie on these two issues:
I. WHETHER THE TERM “OFFICIAL OF A CERTAIN GOVERNMENT” IN ARTICLE 134, UCMJ, INCLUDES EMPLOYEES, AND IF IT DOES INCLUDE EMPLOYEES, WHETHER THE APPELLANT’S CONDUCT CONSTITUTES IMPERSONATION.
II. WHETHER THE MILITARY JUDGE ERRED IN ACCEPTING THE APPELLANT’S GUILTY PLEA WITHOUT INQUIRING INTO THE PROSPECTIVE DEFENSE OF DURESS, WHICH MAY HAVE BEEN RAISED WHEN THE APPELLANT STATED DURING PROVIDENCY: “I FOUND OUT [MY GIRLFRIEND] WAS PREGNANT AND SHE WAS THREATENING TO GET RID OF THE BABY IF I DIDN’T PURCHASE THIS HOUSE FOR HER.”