This week at SCOTUS: The petition in New v. United States is scheduled for conference on February 22. I’m not aware of any other military justice developments at The Supreme Court. There are three active petitions for certiorari in military justice cases:
- Ali v. United States, No. 12-805 (time to file a response extended to Mar. 6)
- Behenna v. United States, No. 12-802 (pending court-ordered response from the SG – due Feb. 27)
- New v. United States, No. 12-892 (pending conference on February 22)
This week at CAAF: The next scheduled oral argument at CAAF is on February 19, 2013.
This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, February 13, 2013, at 10 a.m.:
United States v. Smith, No. ARMY 20101013
I. Whether the evidence is legally and factually insufficient to support [appellant]’s wrongful sexual contact conviction for groping PVT [FD]’s inner thigh in the lion’s club parking lot because the government failed to produce any evidence that [appellant] groped PVT [FD]’s inner thigh and even if he did, he was under a mistake of fact that she consented.
II. Whether the evidence is legally and factually insufficient to support [appellant]’s indecent exposure conviction because the height of his SUV, the dark tinted windows of his SUV, and the fact he did not intend to be seen by any member of the public made it highly unreasonable that his conduct would be witnessed by a member of the general public at lion’s club park.
This week at the AFCCA: The Air Force CCA’s website 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 NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Wednesday, February 13, 2013 at noon, at The George Washington University Law School:
United States v. Oakley
Case Summary: A general court-martial composed of officer members with enlisted representation convicted Appellant, contrary to his pleas, of one specification of aggravated sexual assault and one specification of indecent act, in violation of Article 120, UCMJ, 10 U.S.C. § 920. The members sentenced Appellant to reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for three months, and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged, and except for the bad-conduct discharge, ordered it executed.
Issue: Whether the Military Judge erred in this Article 120 case when he distinguished between evidence of consent and the defense of consent by instructing the members that the Defense had the initial burden to prove evidence of consent by a preponderance of the evidence and only then would the burden shift to the Government to prove beyond a reasonable doubt that the defense of consent did not exist.
Note: The Appellant is represented by Col Sullivan.