This week at SCOTUS: The Supreme Court extended the time for the Solicitor General to file the court-ordered response in Behenna v. United States until March 29. Additionally, the petition in New v. United States was presumably denied on Friday for lack of jurisdiction. Finally, as discussed in this post, a pro-se IFP petition was filed in Robins v. United States, No. 12-8033. Like the New petition, the petition in Robins is without jurisdiction.
I’m not aware of any other military justice developments at The Supreme Court. There are now four active military justice pending SCOTUS action:
- Ali v. United States, No. 12-805 (time for SG to file a response extended to Mar. 6)
- Behenna v. United States, No. 12-802 (time for SG to file court-ordered response extended to Mar. 29)
- New v. United States, No. 12-892 (pending confirmation of denial on February 22)
- Robins v. United States, No. 12-8799 (response from SG due on Mar. 22)
This week at CAAF: CAAF will hear oral argument in one case this week, on Tuesday, February 26, 2013, at 9:30 a.m, at the University of Arizona, James E. Rogers College of Law, Tucson, Arizona:
United States v. Kelly, No. 12-0524/AR (CAAFlog case page)
I. Whether the military judge abused his discretion when he failed to suppress evidence of child pornography discovered on Appellant’s personal computer in the course of an unreasonable search conducted to find contraband after Appellant was wounded in Iraq and medically evacuated to the United States.
II. Whether the Army Court erred in creating a new exception to the Fourth Amendment when it held that the Government’s search of Appellant’s personal computer was reasonable because the Government was not “certain” or “absolutely clear” that it would be returned to the wounded-warrior Appellant.
III. Whether the examination of the contents of Appellant’s computer was an unlawful inspection under M.R.E. 313(b).
• ACCA opinion
• Appellant’s first brief (granted issues)
• Appellee’s (Government) first brief (granted issues)
• Appellant’s second brief (specified issue)
• Appellee’s (Government) second brief (specified issue)
• Blog post: Argument preview
This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, February 27, 2013, at 10 a.m.:
United States v. MacDonald, No. 20091118
I. [Whether t]he military judge abused his discretion in denying a defense requested instruction on involuntary intoxication, and erred in failing to instruct the members on the effect of intoxication on appellant’s ability to form specific intent and premeditation.
II. [Whether t]he military judge abused his discretion in quashing a government subpoena issued to pfizer, inc., to produce relevant and necessary documents regarding clinical trials, adverse event reports, and post-market surveillance of the drug varenicline.
III. [Whether t]he military judge erred in instructing the members that a severe mental disease or defect “does not, in the legal sense, include an abnormality manifested . . . By nonpsychotic behavior disorders and personality disorders,” because such diagnostic categories “improperly surrender to mental health experts the ultimate responsibility of adjudicating criminal culpability.”
Additionally, the court will hear argument on appellant’s motion for appellate discovery.
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 27, 2013, at 10 a.m.:
United States v. West
A military judge, sitting as a special court-martial, convicted the appellant, pursuant to her pleas, of one specification of conspiracy, two specifications of violating a lawful general order, one specification of drunken operation of a vehicle, one specification of wrongful possession of a controlled substance, and two specifications of adultery, in violation of Articles 81, 92, 111, 112a, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 892, 911, 912a, and 934. The military judge sentenced the appellant to reduction to pay grade E-1, confinement for six months, forfeiture of two-thirds pay per month for six months, and a bad-conduct discharge. In accordance with a pretrial agreement, all confinement in excess of time served was converted to restriction, and the adjudged forfeitures were suspended for 12 months. The remainder of the sentence was approved.
I. Whether the appellant’s pretrial confinement at a civilian detention center violated Article 13, UCMJ.
II. Whether the appellant’s pretrial confinement in the barracks duty hut violated Article 13, UCMJ.
III. Does the provision of the pretrial agreement in which the government promises to remove the appellant from confinement and subject her to “a lesser form of pretrial restraint” after she testifies against a co-conspirator (¶16.a of Appellate Exhibit IV) violate public policy?
IV. If that provision violates public policy, what is the proper remedy?