This week at the Supremes:  There are no anticipated military justice developments at the Supremes on my radar screen.

This week at CAAF:  CAAF will hear two oral arguments on Wednesday.  First will be Wuterich v. Jones, No. 11-8009/MC, a writ appeal in which the issue presented is:

WHERE THE ACCUSED’S DETAILED MILITARY DEFENSE COUNSEL: (1) SEEKS TO REMAIN ON ACTIVE DUTY TO CONTINUE REPRESENTING THE ACCUSED IN A HOMICIDE CASE; (2) IS INFORMED BY THE DEPUTY DIRECTOR OF HEADQUARTERS MARINE CORPS’ MANPOWER SECTION THAT HE WILL NOT BE EXTENDED FURTHER; (3) TERMINATES HIS STATUS AS DETAILED DEFENE WITHOUT AUTHORIZATION FROM EITHER THE ACCUSED OR ANY COURT; AND (4) ACCEPTS CIVILIAN EMPLOYMENT THAT CREATES AN IMPUTED CONFLICT ULTIMATELY LEADING A MILITARY JUDGE TO SEVER HIS ATTORNEY-CLIENT RELATIONSHIP WITH THE ACCUSED, HAS THE ACCUSED’S RIGHT TO THE CONTINUATION OF AN ESTABLISHED ATTORNEY-CLIENT RELATIONSHIP BEEN VIOLATED?

[Familiar disclosure:  I’m one of SSgt Wuterich’s appellate counsel.] 

Tuesday’s second argument will be in United States v. Schuber, No. 11-6002/AF, an Article 62 appeal case in which the granted issue is:  “WHETHER THE COURT OF CRIMINAL APPEALS ERRED BY REVERSING THE MILITARY JUDGE AND FINDING THE GOVERNMENT MET ITS BURDEN UNDER ARTICLE 10, UCMJ.”  CAAF also specified this issue:

WHETHER ARTICLE 10, UCMJ, SHOULD HAVE BEEN APPLIED BY THE MILITARY JUDGE AND THE COURT OF CRIMINAL APPEALS WHEN THE ACCUSED HAD BEEN RELEASED FROM CONFINEMENT AFTER 71 DAYS, ALLOWED TO RETURN HOME ON LEAVE FOR 3 DAYS, AND WHEN HE RETURNED, WAS ONLY SUBJECT TO BASE RESTRICTION, A RESTRICTION THAT WAS NOT TANTAMOUNT TO CONFINEMENT.

This week at the CCAs:  ACCA will hear two oral arguments this week.  On Thursday, ACCA will hear United States v. Cunningham, No. ARMY 20080408, on these assignments of error:

I.  THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT THE FINDINGS OF GUILTY.

II.  APPELLANT’S CONVICTION OF THE LESSER INCLUDED OFFENSE UNDER CHARGE II MUST BE SET ASIDE BECAUSE THE MILITARY JUDGE ERRED BY INSTRUCTING THE MEMBERS THAT AGGRAVATED SEXUAL ASSAULT AMOUNTED TO A POTENTIAL LESSER INCLUDED OFFENSE OF THE CRIME OF RAPE UNDER ARTICLE 120, UCMJ.

III.  THE MILITARY JUDGE ERRED BY IMPLICITLY FINDING ARTICLE 120, UCMJ CONSTITUTIONAL WHEN HE INSTRUCTED THE MEMBERS ON CONSENT, MISTAKE OF ACT AND THE BURDEN OF PROOF, CONTRARY TO THE STATUTORY LANGUAGE SET FORTH UNDER THE NEW UCMJ RAPE STATUTE.

On Friday, ACCA will hear oral argument in United States v. Nordin, No. ARMY 20090044, on these issues:

I.  WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN HE ALLOWED THE ADMISSION OF INSTANCES OF ULTIMATE ISSUE TESTIMONY AND THEN FAILED TO PROVIDE PROMPT, CURATIVE INSTRUCTIONS TO THE MEMBERS.

II.  WHETHER THE TRIAL DEFENSE COUNSEL PROVIDED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, INEFFECTIVE ASSISTANCE OF COUNSEL TO APPELLANT DURING TRIAL IN RESTING THE DEFENSE CASE WITHOUT PRESENTING ANY EVIDENCE AND IN FAILING TO PRESENT H. M’s AFFIDAVIT TO THE CONVENING AUTHORITY IN APPELLANT’S POST-TRIAL SUBMISSION.

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