This week at SCOTUS: The Court denied certiorari in Wickware v. United States, No. 14-6677 last Monday. I’m not aware of any other military justice developments at the Supreme Court, where I’m now tracking no cases.
This week at CAAF: CAAF will hear oral argument in three cases this week:
On Tuesday, November 18, 2014, CAAF will hear oral argument in the capital case of United States v. Akbar, No. 13-7001/AR (CAAFlog case page):
Issues to be argued:
I. Whether the Appellant was denied his right to the effective assistance of counsel, as guaranteed by the Sixth Amendment to the U.S. Constitution, at every critical stage of his court-martial.
II. Whether this Court should order a post-trial evidentiary hearing to resolve disputed factual issues relevant to Appellant’s numerous collateral claims unless the Court finds in his favor on another dispositive ground.
III. Whether the prosecution’s victim impact presentation and argument, and counsel’s failure to object, violated Appellant’s Fifth, Sixth, and Eighth Amendment rights.
IV. Whether the military judge denied Appellant a fair trial by failing to sua sponte dismiss fourteen of the fifteen panel members for cause based on actual and implied bias manifested by relationships of the members, a predisposition to adjudge death, an inelastic opinion against considering mitigating evidence on sentencing, visceral reactions to the charged acts, preconceived notions of guilt, and detailed knowledge of uncharged misconduct that had been excluded.
V. Whether the analysis of the Army Court of Criminal Appeals of Appellant’s case was flawed because of its misapplication of the standards applicable to federal and state capital defense counsel and that court’s determination that counsel were “well-qualified.”
On Wednesday, November 19, 2014, CAAF will hear oral argument in two cases:
United States v. Newton, No. 14-0415/AR (CAAFlog case page)
Issue: Whether the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250 (a) (2006), applied to Appellant as a result of either the Attorney General’s 2007 interim rule or his 2008 guidelines. See, e.g., United States v. Lott, 750 F.3d 214 (2d Cir. 2014), 2014 WL 1522796; United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013.)
United States v. Jones, No. 14-0057/AF (CAAFlog case page)
Issue: Whether the de facto officer doctrine conferred validity upon Judge Soybel’s participation in the Air Force Court of Criminal Appeals’ decision in Appellant’s case. See Ryder v. United States, 515 U.S. 177, 182-84 (1995); Nguyen v. United States, 539 U.S. 69, 72-73 (2003); United States v. American-Foreign S.S. Corp., 363 U.S. 685 (1960); Ayshire Collieries Corp. v. United States, 331 U.S. 132 (1947); Norton v. Shelby County, 118 U.S. 425, 446 (1986); United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014); United States v. Elliott, 15 M.J. 347 (C.M.A. 1983).
• AFCCA opinion
• AFCCA opinion on reconsideration
• Blog post: Here come the trailers
• Blog post: CAAF to re-examine the Soybel appointment
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview
This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 10, 2014.
This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 24, 2014.
This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments 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 Thursday, November 20, 2014:
United States v. Owens
A panel of members, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of violating a lawful general order, abusive sexual contact, and conduct unbecoming an officer and a gentleman, in violation of Articles 92, 120, and 133, Uniform Code of Military Justice. The members sentenced the appellant to a dismissal. The convening authority approved the sentence as adjudged.
I. The appellant was denied the right to discovery under Article 46, UCMJ, when the government failed to produce evidence of SD’s learning disability in response to a general request for evidence impacting SD’s credibility. The error was not cured by the military judge’s later conclusion that the evidence was not relevant after she had articulated the relevance and the defense sought to use the evidence to attack SD’s credibility.
II. Appellant was denied the right under the Sixth Amendment to confront his accuser when the military judge first concluded that evidence related to SD’s learning disability was relevant, permitted the Government to question her about it at length, then denied the Defense the opportunity to cross-examine her on it and instructed the members to disregard it. Evidence of SD’s learning disability, or lack thereof, was relevant to her crediblity.
III. Appellant was denied a meaningful opportunity for clemency when the military judge emailed the members telling them not to communicate with the defense counsel and subsequently issued an order having a “chilling effect” on the likelihood that they would submit a clemency recommendation; and when the staff judge advocate withheld from the convening authority at least one and possibly more clemency recommendations he had received from the sentencing authority.