This week at SCOTUS: There is one pending petition for certiorari in a military justice case: Easton v. United States, No. 12-210 (response from the SG due on December 12, 2012). I’m not aware of any other military justice developments at the Supreme Court.
This week at CAAF: CAAF will hear oral argument in the three cases this week, all on Monday, December 3, 2012, beginning at 9:00 am. These are the last scheduled oral arguments of the calendar year:
United States v. Bowersox, No. 12-0398/AR (CAAFlog case page)
Issue: Whether Appellant’s conviction of violating 18 U.S.C. 1466A(b) (1), as imported through clause 3 of Article 134, UCMJ, is unconstitutional as applied to him because the minors depicted in the material at issue were not actual minors. See Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); United States v. Whorley, 550 F.3d 326 (4th Cir. 2008).
• ACCA opinion (71 M.J. 561 (A.Ct.Crim.App. 2012)
• Blog post: Reminder from the ACCA: you’re special
• Blog post: Bowersox granted
• Appellant’s Brief
• Appellee’s (Government) Brief
• Appellant’s Reply Brief
• Blog post: Argument preview
United States v. Clifton, No. 12-0486/AR (CAAFlog case page)
Issue: Whether the Army Court of Criminal Appeals erred when it determined the military judge committed error by denying a panel member’s request to call two additional witnesses for questioning, but found this error to be harmless.
United States v. Tunstall, No. 12-0516/AF (CAAFlog case page)
I. Whether appellant’s conviction for indecent acts must be set aside because the military judge erred in instructing the jury that indecent acts is a lesser included offense of aggravated sexual assault.
II. Whether the finding of guilty to adultery must be dismissed in accordance with Rule for Courts-Martial 907(b)(1) because it fails to state an offense.
This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, December 6, 2012, at 10:00 am:
United States v. Hollingsworthmata, No. 20100752
Issue: [Whether] Appellant’s constitutional and regulatory right to a fair and impartial panel was violated by the misconduct of panel members.
This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Park on Thursday, December 6, 2012, at at 10:00 am. No case information is posted on the court’s website.
This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.
This week at the NMCCA: There Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, December 6, 2012, at 10:00 am:
United States v. Boyer
Case Summary: A panel of officer members, sitting as a general court-martial, convicted the Appellant, contrary to his pleas, of one specification of indecent liberties with a child and one specification of sodomy with a child under 12, in violation of Articles 120 and 125, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925. The members sentenced Appellant to forfeiture of all pay and allowances, reduction to pay grade E-1, confinement for eight years, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the punitive discharge, ordered it executed.
I. Whether trial counsel’s argument on findings was improper and constituted prosecutorial misconduct? Briefs must address, but are not limited to, trial counsel’s interjection of his personal opinions and beliefs, disparaging comments about the appellant’s credibility, disparaging comments about the defense case and trial defense counsel, introduction of facts not in evidence, claims that the defense was attempting to “silence” the victim, and request that the members “protect” the victim by convicting the appellant. See United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005)
II. Assuming trial counsel’s argument on findings included improper comments, taken as a whole, were those comments materially prejudicial to the appellant’s substantial rights under article 59(a), UCMJ? See Fletcher, 62 M.J. at 184-85 (impact involves a balancing of three factors).
III. Assuming material prejudice, what is the proper remedy?