This week at SCOTUS: The SG received an extension of time to respond to the cert petition in Katso. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF will hear oral argument in three cases this week:

Tuesday, January 12, 2016, at 9:30 a.m.:

United States v. Henning, No. 16-0026/AR (CAAFlog case page)

Issue: Whether the Army Court applied the wrong standard of review to this Article 62, UCMJ, appeal when it found the military judge made erroneous findings of fact and erroneous conclusions of law.

Case Links:
ACCA opinion
Blog post: The Army CCA allows DNA evidence where “approximately 1 in 220 unrelated individuals in the general population would be a match”
• Appellant’s Brief (supplement to the petition for grant of review)
Appellee’s (Government) Brief (answer to the petition)
Blog post: Argument preview

Followed by:

United States v. Pease, No. 16-0014/NA (CAAFlog case page)

I. The lower court judicially defined “incapable of consenting” contrary to the instructions given to the members and used this definition to find three charges of sexual assault and one charge of abusive sexual contact factually insufficient. In creating this new legal definition not considered by the factfinder and nowhere present in the record, did the lower court consider matters outside the record and outside its statutory authority in conducting its factual sufficiency review?
II. The lower court judicially defined “incapable of consenting” in a manner that limits prosecutions to only two situations – “inability to appreciate” and “inability to make and communicate” an agreement. To prove the latter, the court further required proof that a victim be unable both to make and to communicate a decision to engage in the conduct at issue. Nothing in the statute reflects congressional intent to limit Article 120, UCMJ, prosecutions in this manner. Did the lower court err?

Case Links:
NMCCA opinion (74 M.J. 763)
Blog post: The NMCCA interprets the term “incapable of consenting”
Appellant’s (Government) Brief
Appellee’s Brief
Appellant’s (Government) Reply Brief
Blog post: Argument preview

Wednesday, January 13, 2016, at 9:30 a.m.:

United States v. Chin, No. 15-0749/AF (CAAFlog case page)

Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) committed legal error by finding that unreasonable multiplication of charges was not waived, in direct contradiction of this court’s binding precedent in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009).

Case Links:
AFCCA opinion
Blog post: The Air Force JAG certifies two cases
Blog post: The Air Force JAG amends the certified issue
Appellant’s (Government) brief
• Appellee’s Brief
Amicus Brief of Navy-Marine Corps Appellate Government Division
Amicus Brief of Army Appellate Government Division
Amicus Brief of Coast Guard Appellate Government Division
• Amicus Brief of Marine Corps Defense Services Organization
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in two cases this week. Both arguments will be heard at law schools:

Monday, January 11, 2016, at 5 p.m., at Ohio State University Moritz College of Law:

United States v. Herrmann, No. 20131064

Issue: Whether the evidence is factually sufficient to sustain a conviction on Specification 2 of Charge III, reckless endangerment, when the government failed to elicit any evidence of the likelihood that the parachutes would fail to deploy therefore causing death or grievous bodily harm.

Wednesday, January 13, 2016, at 5 p.m., at Michigan State University College of Law

United States v. Williams, No. 20140401

Issue: Whether the evidence was legally sufficient to support the findings of guilty to indecent exposure where appellant was fully clothed at the time he showed a photograph of his genitalia.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 22, 2016.

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

This week at the NMCCA: The NMCCA’s website shows no scheduled oral arguments.

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