Next week at the Supremes: There are no anticipated military justice developments at SCOTUS on my radar screen.
Next week at CAAF: CAAF has completed its scheduled oral arguments for the term. By my count, four argued cases remain undecided. We expect CAAF to decide these cases no later than 31 August. The four caess are: Ellerbrock (Mil. R. Evid. 412), Lusk (application of Melendez-Diaz), Sweeney (application of Melendez-Diaz), and Baker (Article 62 appeal identification evidence case).
Next week at the CCAs: NMCCA will hear a rescheduled oral argument on Tuesday. United States v. Caldwell was originally scheduled to be heard on 3 August, but was moved to 16 August. Here’s the issue, presented in Garnerian deep-issue format:
APPELLANT WAS CONVICTED OF INTENTIONAL SELF-INJURY FOR ATTEMPTING SUICIDE. CAN INTENTIONAL SELF-INJURY BE USED AS A VEHICLE FOR CRIMINALIZING BONA FIDE SUICIDE ATTEMPTS INDUCED BY DEPRESSION, PTSD, OR OTHER MENTAL ILLNESS?
On Thursday, AFCCA will hear oral argument in United States v. Dease, Misc. Dkt. No. 2011-04, an Article 62 appeal case. Here are the issues as framed by the government:
I. WHETHER THE MILITARY JUDGE ERRED IN DETERMINING THAT THE ACCUSED MAINTAINED AN EXPECTATION OF PRIVACY IN URINE AFTER PROVIDING IT PURSUANT TO VALIDLY OBTAINED CONSENT.
II. WHETHER THE MILITARY JUDGE INCORRECTLY APPLIED THE DOCTRINE OF INEVITABLE DISCOVERY TO THE ADMISSION OF THE TEST RESULTS OF THE ACCUSED’S URINE SAMPLE.
The central decisional issue is whether the government can rely on a consent rationale to test urine after a servicemember consented to the collection of the urine but then revoked his consent to search the urine before the testing was conducted. If so, then the question becomes whether the evidence obtained by the testing would have been inevitably discovered had the government honored the servicemember’s revocation of consent to search the urine.