This week at SCOTUS: I am not aware of any new military justice developments at the Supreme Court.
This week at the ACCA: The Army CCA will hear oral argument in five cases this week:
Wednesday, January 18:
United States v. Reynard, No. 20100531
Issue: I. [Whether] The evidence is legally and factually insufficient to prove rape and indecent assault.
Briefs not posted.
Thursday, January 19:
United States v. Spicer, No. 20090608
I. [Whether] The evidence is factually and legally insufficient to support the findings of guilty.
II. [Whether] Appellant’s sentence is inappropriately severe.
United States v. Boldware, No. 20090665
I. [Whether] Article 120(c) of the UCMJ, which requires the accused to disprove the element of incapacity by a “preponderance of the evidence” in order to assert the affirmative defense of consent, unconstitutionally burdens the accused.
II. [Whether] The military judge erred in precluding under military rule of evidence 412, vigorous cross-examination of the alleged victim about homosexual conduct offered to demonstrate the strong motive to misrepresent the truth contrary to appellant’s sixth amendment rights.
III. [Whether] The military judge erred when upon finding appellant not guilty of charged offense of article 125, UCMJ, sodomy, he found appellant guilty of what he believed was a lesser included offense of abusive sexual contact under article 120, UCMJ.
Briefs not posted.
Friday, January 20:
United States v. Presley, No. 20090673
I. Whether the military judge committed plain error during sentencing by considering detailed descriptions of aggravated acts of uncharged misconduct that were not directly related to the charged offenses.
II. Whether the approved sentence to confinement for five (5) years is inappropriately severe.
III. Whether appellant’s defense counsel provided ineffective assistance by failing to procure the services of an expert consultant in the field of forensic psychology or otherwise request a sanity board under R.C.M. 706.
Briefs not posted.
United States v. Bean, No. 20100362
Issue: I. [Whether] The military judge abused his descretion in accepting appelant’s plea to Charge III and its specification, conduct unbecoming an officer and gentleman.
This week at the AFCCA: The Air Force CCA’s docket shows no scheduled oral arguments.
This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.
This week at the N-MCCA: The Navy-Marine Corps CCA will hear oral argument in United States v. Kilarski on Friday, January 20. The case involves a conviction by members of a single specification of wrongful use of marijuana. The granted issues are:
I. Under the Sixth Amendment of the Constitution, an Accused has the right “to be confronted with the witnesses against him.” A recent Supreme Court decision, Bullcoming v. New Mexico, ruled that surrogate testmony of a scientist who did not certify a forensic laboratory report introduced into evidence violates the Confrontation Clause. Here, despite the defense’s request for the certifying scientist’s testimony, the military judge permitted a surrogate to testify. Did the military judge err?
II. After inspecting Corporal Kilarski’s urine sample, the laboratory accessions technician handwrote a discrepancy code on the specimen custody document. Before trial, the defense argued the confrontation clause required the accessions technician’s testimony, but the military judge denied its motion. Did the military judge err?
Additionally, the court posted the details of last week’s oral argument in United States v. Simmons. That case is an en banc reconsideration of the court’s unpublished opinion (available here) affirming the findings in part but setting aside the sentence. The issues argued were:
I. United States v. Ferguson and United States v. Broce establish that an unconditional guilty plea waives any objection related to the facutal issue of guilt. The panel was not satisfied that appellant was acting in an official capacity or that his actions created an inference of service endorsement and, therefore, set aside appellant’s guilty plea to Article 92. Did the panel err in not finding that, by admitting certain facts at trial and pleading guilty, appellant waived his right to contest the government’s theory on appeal?
II. The panel found that appellant never wore a complete uniform so the general public could never receive visual evidence of the authority and responsibility vested in the individual by the united states government. Did the panel err by drawing a distinction between wearing a complete uniform and wearing uniform items?