Significant military justice events this week: As discussed in this post, LexisNexis hosts a free breakfast & CLE-accredited symposium on Emerging Issues in Military Sexual Assault Prosecutions on Thursday, October 8, from 9 a.m. to 1 p.m. at the the National Press Club, Holeman Lounge, 529 14th St. NW Washington, D.C.

Additionally, the next meeting of the Judicial Proceedings Panel will occur this week, on Friday, October 9, 2015, from 9 a.m. to 5 p.m. at the Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Additional details are available here.

This week at SCOTUS: A cert. petition was filed in Katso v. United States, No. 14-5008, on September 25, 2015. A copy of the petition is available here. Last term, in United States v. Katso, 74 M.J. 273 (C.A.A.F. Jun. 30, 2015) (CAAFlog case page), CAAF held that the testimony of a Government DNA expert – who did not conduct the DNA testing at issue in the case – did not violate the appellee’s constitutional right to confront the witnesses against him, reversing the published decision of the Air Force CCA and remanding the case for further proceedings.

Additionally, an application for extension of time to file a cert. petition was filed in Schloff v. United States, No. 15-0294, on October 2, 2015. Last term, in United States v. Schloff, 74 M.J. 312 (C.A.A.F. Jul 16, 2015) (CAAFlog case page), a sharply divided CAAF concluded that sexual contact, as defined by Article 120(g)(2) (2012), includes both body-to-body contact and object-to-body contact.

Finally, Buford isn’t among the cases granted review last week, and so was presumably denied. Until the Court updates its website, I’m tracking three military justice cases at the Supreme Court:

This week at CAAF: CAAF will hear oral argument in four cases this week; two each on Tuesday, October 6 and Wednesday October 7, 2015:

Tuesday, October 6, 2015, at 9:30 a.m.:

United States v. Cooley, No.15-0384/CG & 15-0387/CG (CAAFlog case page)

Certified Issues:
I. Whether the Coast Guard Court of Criminal Appeals erred by finding that pre-trial confinement can serve as per se prejudice for purposes of determining a violation of Article 10, Uniform Code of Military Justice.
II. Whether the facts and circumstances or Appelle’s case, considering the factors set out in Barker v. Wingo, 407 U.S. 514, 530 (1972) and applied to review of Article 10 by United States v. Birge, 52 M.J. 209, 212 (C.A.A.F. 1999), amount to a violation of Article 10, Uniform Code of Military Justice.

Granted Issue:
Whether the government violated Appellant’s rights under Article 10, UCMJ, when the Government possessed key evidence against Appellant on July 20, 2012 and Feberuary 5, 2013, yet made no move to prosecute Appellant for these offenses until June of 2013, despite his pretrial confinement from December 20, 2012.

Case Links:
• CGCCA opinion
Blog post: The Coast Guard CCA raises Article 10 from the dead
Blog post: The Coast Guard certifies Cooley
Blog post: AAF rejects expedited review in Cooley
Blog post: Cooley pursues habeas
Government brief on certified issues
Appellee’s brief on certified issues
Government’s reply brief
Appellee’s brief on granted issue
Government brief on granted issue
Appellee’s reply brief
Blog post: Argument preview

Followed by:

United States v. Wilder, No.15-0087/MC (CAAFlog case page)

Issue: Whether the promulgation of RCM 707 abrogated the “substantial information” rule originated in United States v. Johnson, 23 C.M.A. 91, 48 C.M.R. 599 (1974).

Case Links:
NMCCA opinion
• Blog post: Two interesting speedy trial decisions from the NMCCA
• Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

Wednesday, October 7, 2015, at 9:30 a.m.:

United States v. Busch, No.15-0477/AF (CAAFlog case page)

Issue: At the time of appellant’s alleged sexual abuse of a child offense, the President had not set the maximum punishment for the offense. The military judge used a later-enacted executive order to set the maximum punishment, even though it increased the confinement range from one year to fifteen years. Was the Ex Post Facto clause violated?

Case Links:
• AFCCA opinion
Blog post: The Air Force CCA grapples with R.C.M. 1003(c)(1)(B)
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

Followed by:

United States v. Killion, No.15-0425/AF (CAAFlog case page)

I. Whether appellant’s conviction for provoking speech is legally insufficient because “under the circumstances” his words were not reasonably likely to provoke violence.
II. Whether the military judge’s instructions regarding provoking speech were deficient under the facts and circumstances of appellant’s case.

Case Links:
AFCCA opinion
Blog post: CAAF to review whether an appellant’s speech was sufficiently provoking
Appellant’s brief
Appellee’s (Government) brief (not currently available on CAAF’s website)
Appellant’s reply brief

This week at the ACCA: The next scheduled oral argument at the Army CCA is on October 22, 2015.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on October 8, 2015, at 10 a.m.:

United States v. Zambrano

Case summary: A military judge sitting as a special court-martial convicted the Appellant contrary to his pleas, of assault consummated by battery, in violation of Article 128, UCMJ, 10 USC § 928 (2012). The military judge sentenced the appellant to 125 days of confinement, reduction to pay grade E-1, and a bad conduct discharge. The convening authority approved the sentence as adjudged, and, except for the bad-conduct discharge, ordered the sentence to be executed.

I. Whether the evidece is legally and factually sufficient.
II. An accused has a contitutional right to effective assistance of counsel. Here, the trial defense counsel failed to investigate possibly exculpatory text messages exchanged between one of the government’s main witnesses and the victim, as well as witnesses who might have impeached the credibility of the same witness. Was the defense counsel inffective?

One Response to “This Week in Military Justice – October 4, 2015”

  1. Dew_Process says:

    Of note in Katso, Prof. Eric Friedman of U of Mich Law, is counsel of record. Eric has argued a number of the Crawford – Confrontation Clause cases at SCOTUS as well as authoring numerous amicus briefs.