This week at SCOTUS: There are two new petitions for cert in military justice cases:
Dalton v. United States, No. 13-589. Dalton is a Marine Corps homicide case tried at Camp Lejeune, NC, in 2011. Appellant was convicted, contrary to his pleas, of involuntary manslaughter as a lesser included offense of unpremeditated murder. On appeal he challenged whether this is actually a LIO. The NMCCA affirmed the findings in an opinion published at 71 M.J. 632 (link to slip op.) CAAF granted review and summarily affirmed on July 17, 2013, with this daily journal entry:
No. 13-0124/MC. U.S. v. William C. DALTON. CCA 201100521. On further consideration of the granted issue, 72 M.J. 83 (C.A.A.F. 2013)(order granting review), and the briefs filed by the parties, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*
* We agree with the Court of Criminal Appeals that involuntary manslaughter under Article 119(b)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 919(b)(1) (2006), is a lesser included offense of unpremeditated murder under Article 118(2), UCMJ, 10 U.S.C. 918(2) (2006). However, the Court of Criminal Appeals erred when it suggested that the comparison of elements between murder and involuntary manslaughter must be conducted or “viewed in the light of human experience.” United States v. Dalton, 71 M.J. 632, 634 (N-M. Ct. Crim. App. 2012). Such language conflicts with our past decisions. United States v. Wilkins, 71 M.J. 410, 412 (C.A.A.F. 2012); United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010); and United States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010) (applying normal principles of statutory construction to statutory elements).
Brown v. United States, No. 13-583. CAAF decided United States v. Brown, No. 13-0244/NA, (opinion) (CAAFlog case page) on July 15, 2013, finding that the military judge did not abuse his discretion under Military Rule of Evidence 611(a) when he allowed the victim advocate to sit next to the 17 year-old victim during her testimony against Appellant, affirming the NMCCA.
I’m not aware of any other military justice developments at the Supreme Court, where I’m now tracking the two new petitions and the petition for a writ of mandamus in the Partington case:
- In Re Earl A. Partington, No. 13-414 (pending conf. on Nov. 26) (CAAFlog coverage of the Partington case)
- Dalton v. United States, No. 13-589 (pending response from the SG)
- Brown v. United States, No. 13-583 (pending response from the SG)
This week at CAAF: CAAF will hear oral arguments in two cases this week, both on November 18, 2013. With Kevin Ohlson recently confirmed to fill the vacant seat at CAAF, and no notice in the daily journal naming any senior judge to sit for these cases, it looks like we will get our first taste of Judge Ohlson’s style tomorrow:
United States v. Hines, No. 13-5010/AR (CAAFlog case page)
Issues (both certified by the Army JAG):
I. Whether the Army Court of Criminal Appeals erred when it held that Appellee’s pleas to Specifications 1, 2, and 3 of Charge II were improvident because theft of basic allowance for housing and family separation allowance occurring over multiple months “amounts to a separate larceny each month the money is received.”
II. Whether the Army Court of Criminal Appeals erred when it held that Appellee’s pleas to Specifications 1 and 3 of Charge II were improvident because the military judge “never satisfactorily resolved the inconsistency between [Appellee’s] pleas to the entire amount [of basic allowance for housing] in light of his apparent entitlement to a lesser amount.”
United States v. Knapp, No. 13-5012/AF (CAAFlog case page)
Issue: Whether the military judge (1) plainly erred by initially allowing “human lie detector” testimony, (2) abused his discretion by allowing further admission of “human lie detector” testimony, over defense objection, and (3) erred by not providing a curative instruction on the “human lie detector” testimony.
This week at the ACCA: The Army CCA will hear oral argument in one case this week, on is on Thursday, November 21, 2013, at 10 a.m.:
United States v. Stanczyk, No. 20110438
I. Whether the evidence is factually and legally insufficient to support the findings of guilty.
II. Whether the military judge committed prejudicial error when he denied a defense objection to uncharged misconduct, which the government offered under Mil. R. Evid. 404(b) and 413.
This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 25, 2013.
This week at the CGCCA: The Coast Guard Trial Docket shows one scheduled oral argument at the Coast Guard CCA, on January 9, 2014.
This week at the NMCCA: The next scheduled date for oral argument at the Navy-Marine Corps CCA is on November 26, 2013.