This week at the Supremes: There are no anticipated military justice developments at the Supremes this week.
This week at CAAF: CAAF has completed its scheduled oral arguments for the term. By my count, six argued cases remain undecided. We expect CAAF to decide these cases no later than 31 August. The six caess are: Ellerbrock (Mil. R. Evid. 412), Gaddis (Mil. R. Evid. 412), Lusk (application of Melendez-Diaz), Fosler (whether Article 134′s terminal element must be alleged on charge sheet), Sweeney (application of Melendez-Diaz), and Baker (Article 62 appeal identification evidence case).
This week at the CCAs: NMCCA will hear oral argument at 1100 tomorrow on the latest petition for extraordinary relief arising from the court-martial case of SSgt Frank Wuterich. Wuterich v. United States, NMCCA No. 200800183. NMCCA ordered oral argument on these issues:
I. WHETHER THE PETITIONER MEETS THE THRESHOLD REQUIREMENTS FOR MANDAMUS RELIEF BASED UPON HIS CLAIM THAT LTCOL VOKEY, HIS FORMER DETAILED DEFENSE COUNSEL AND CIVILIAN DEFENSE COUNSEL, SHOULD BE RESTORED TO HIS DEFENSE TEAM BEFORE PETITIONER’S COURT-MARTIAL PROCEEDS.
II. WHETHER LTCOL VOKEY VOLUNTARILY TERMINATED HIS REPRESENTATION OF THE PETITIONER WHEN HE ALERTED THE TRIAL JUDGE TO A CONFLICT OF INTEREST AND MOVED TO WITHDRAW HIMSELF AS CIVILIAN DEFENSE COUNSEL IN SEPTEMBER 2010.
III. IF LTCOL VOKEY VOLUNTARILY RETIRED FROM ACTIVE DUTY AND THEN ASSUMED THE MANTLE OF CIVILIAN DEFENSE COUNSEL IN REPRESENTING THE PETITIONER IS RESTORATION TO ACTIVE DUTY A VIABLE OPTION FOR REMEDY.
[Familiar disclosure: I’m one of SSgt Wuterich’s appellate defense counsel, though my colleague Maj Babu Kaza will be presenting his oral argument tomorrow.]
On Tuesday at 1000, the Air Force Court will hear oral argument in United States v. Saldana, No. ACM 37598, on these issues:
I. Whether the evidence is legally and factually insufficient to prove beyond a reasonable doubt that Appellant assaulted [D.E.M.] by causing two fractures to the right arm and one fracture to the right leg in Specification 1 of the Charge, and that Appellant assaulted [D.E.M.] by throwing him onto the ground and striking his head against Appellant’s leg in Specification 2 of the Charge.
II. Appellant’s constitutional and regulatory right to a fair and impartial panel was violated by the misconduct of the president of the panel, who failed to disclose that he had received legal training for his role as a military magistrate.