This week at SCOTUS: As discussed last week by Col Sullivan, there is now a third active petition for certiorari by the Supreme Court – Stanley v. United States, No. 11-1500 – and the court has called for a response (due July 13) to the petition in Fry v. United States, No. 11-1395. The other active petition, in Ballan v. United States, No. 11-1394, is set for conference on June 21.

The question presented in Stanley v. United States is:

Petitioner brandished a pistol inside his farmhouse to temporarily subdue two fellow soldiers whom he believed to be armed and threatening. Petitioner shot and killed both soldiers after one picked up a rifle and fired it at Petitioner and after Petitioner observed the other attempt to stab a fourth soldier from behind. Petitioner argued on appeal that the trial court erred by failing to instruct that a mutual combatant or provocateur does not lose the right to self-defense if the adversary escalates the force in the conflict or if there is no opportunity to withdraw. The lower court held that the act of brandishing the pistol escalated the conflict, which deprived Petitioner of any entitlement to a self-defense instruction addressing escalation of force by the two men towards whom the pistol had been brandished. The question presented is:

Whether an individual who brandishes a firearm loses his entitlement to lawfully defend himself and third parties against the subsequent use of deadly force by those on whom the weapon was brandished?

Additionally, we continue to wait for the Court’s decision in Williams v. Illinois, No. 10-8505.

This week at CAAF: CAAF has completed its oral argument schedule for the term.

The court heard oral argument in 35 cases this term, and to-date issued 28 published opinions (plus one summary affirmation and one dismissal), leaving five cases undecided.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 28.

This week at the AFCCA: There are no scheduled oral arguments at the Air Force CCA.

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in United States v. Key on June 20, 2012:

Case Summary: A military judge, sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of violation of a lawful general order, in violation of Article 92, one specification of aggravated sexual assault, in violation of Article 120, one specification of an indecent act, in violation of Article 120, one specification of adultery in violation of Article 134, and one specification of obstruction of justice, in violation of Article 134. The military judge sentenced the appellant to seven years confinement, reduction to pay grade E-1, and a dishonorable discharge. The Convening Authority approved the sentence as adjudged, and, except for the punitive discharge, ordered the sentence executed.

(I) Whether the military judge abused his discretion in excluding the alleged victim’s sexually suggestive language to a co-actor moments before the appellant engaged in sexual activity with the alleged victim?
(II) Assuming the military judge abused his discretion, was the error harmless?

One Response to “This Week in Military Justice – 17 June 2012”

  1. Keith D. Smith says:

    I received an email update from the ABA’s Criminal Justice Section that SCOTUS handed down a 5-4 decision in Williams v. Illinois today. This will definitely effect our drug case jurisprudence. Details and link to the full opinion are below. “Williams v. Illinois (5-4 opinion by Justice Alito, plurality, on June 18, 2012) Summary: In an opinion by Justice Alito, the Court affirmed the decision of the Illinois Supreme Court and held that the form of expert testimony given in this case, allowing an expert witness to discuss the results of DNA testing performed by non-testifying analysts did not violate the Confrontation Clause. Justice Breyer filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgment. Justice Kagan filed a dissenting opinion, which was joined by Justices Scalia, Ginsburg and Sotomayor.” Read full opinion at