This week at SCOTUS: The Government received an additional (4th) extension of time to respond to the cert. petition in Sullivan. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

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

Tuesday, April 26, 2016, at 9:30 a.m.:

United States v. Witt, No. 15-0260/AF (CAAFlog case page)

Issues:
I. Whether a court of criminal appeals sitting en banc can reconsider a previous en banc decision of that court pursuant to statutory authority, applicable precedent, or inherent authority?
II. Whether a decision of a court of criminal appeals sitting en banc can be reconsidered en banc when the composition of the en banc court has changed?

Case Links:
AFCCA decision (72 M.J. 727)
Blog post: AFCCA sets aside death sentence in Witt
AFCCA decision (73 M.J. 738)
Blog post: AFCCA reinstates the death penalty for Senior Airman Witt
Blog post: #7 Military Justice Story of 2014
Blog post: CAAF to examine the AFCCA’s reconsideration
Blog post: Oral argument limited to two issues
• Appellant’s brief (specified issues)
Appellee’s (Government) brief (specified issues)
Appellant’s reply brief (specified issues)
Appellee’s (Government) brief (specified issues
Appellant’s brief (other issues)
Appellee’s (Government) brief (other issues)
Appellant’s reply brief (other issues)
Blog post: Argument preview

Wednesday, April 27, 2016, at 9:30 a.m.:

United States v. Sterling, No.s 15-0510/MC & 16-0223/MC (CAAFlog case page)

Specified Issues:
I. Did Appellant establish that her conduct in displaying signs referencing biblical passages in her shared workplace constituted an exercise of religion within the meaning of the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1 (2012), as amended? If so, did the actions of her superior noncommissioned officer in ordering her to take the signs down, and in removing them when she did not, constitute a substantial burden on appellant’s exercise of religion within the meaning of the Act? If so, were these actions in furtherance of a compelling government interest and the least restrictive means of furthering that interest?
II. Did Appellant’s superior noncommissioned officer have a valid military purpose in ordering appellant to remove signs referencing biblical passages from her shared workplace?

Certified Issues:
I. Did Appellant’s failure to follow an instruction on the accommodation of religious practices impact her claim for relief under the Religious Freedom Restoration Act?
II. Did Appellant waive or forfeit her Religious Freedom Restoration Act claim of error by failing to raise it at trial?

Case Links:
NMCCA oral argument audio
NMCCA opinion
Blog post: A military order vs. the Religious Freedom Restoration Act
Blog post: The Government’s answer and an amicus brief in Sterling
Blog post: CAAF grants (on specified issues) in Sterling
Blog post: Navy JAG certifies issues in Sterling (and the appellant files her brief)
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Appellee’s (Government) reply brief
Amicus brief (in support of Sterling): Aleph Institute, et al.
Amicus brief (in support of Sterling): Alliance Defending Freedom and Chaplain Alliance for Religious Liberty
Amicus brief (in support of Sterling): Citizens United, Citizens United Foundation, U.S. Justice Foundation, Faith and Action, Public Advocate of the U.S., Conservative Legal Defense and Education Fund, Institute on the Constitution, E. Ray Moore, and George P. Byrum
Amicus brief (in support of Sterling): Members of Congress, American Center for Law and Justice, and Committee to Protect Religious Liberty in the Military
Amicus brief (in support of Sterling): Nine Retired General Officers
Amicus brief (in support of Sterling): Rabbi Philip Lefkowitz
Amicus brief (in support of Government): Americans United for Separation of Church and State, Jewish Social Policy Action Network, and People for the American Way Foundation 
Amicus brief (in support of neither party): States of Oklahoma, Nevada, Arizona, Arkansas, Georgia, Nebraska, South Carolina, Texas, Utah, and West Virginia
Blog post: Argument preview

This week at the ACCA: The Army CCA’s website is still not accessible to the public (discussed here). The Army CCA will hear oral argument in three cases this week:

Tuesday, April 26, 2016, at 10 a.m.: United State v. Bonilla, No. 20131084 Edit: rescheduled to May 12.

Wednesday, April 27, 2016, at 10 a.m.: United States v. Marsh, No. 20120572

Friday, April 29, 2016, at 10 a.m.: United States v. Manriquez, No. 20140893

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on May 11, 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 Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

7 Responses to “This Week in Military Justice – April 24, 2016”

  1. Peanut Gallery says:

    forget about Monifa Sterling.  Private Hypothetical posts several large signs saying, “There is no God but Allah and Mohammed is his Messenger.”  He refuses to remove them from a communal working area.  What result, General Clement?

  2. Concerned Defender says:

     

    forget about Monifa Sterling.  Private Hypothetical posts several large signs saying, “There is no God but Allah and Mohammed is his Messenger.”  He refuses to remove them from a communal working area.  What result, General Clement?

     

     
    Well now you’re changing the facts by implying it’s offensive/disruptive and in a communal working area.  My take was that Sterling’s were in her work area and not obstructions.  I’d say that an individual’s religious views are not appropriate for communal areas and they should be removed, except from areas like a Mosque or Church for instance where they are expected to be displayed.  But a private work station or office, yes.  Think of it like a picture of you with your family.  Good for your desk and workstation wall, not appropriate for the hall bulletin board.  

  3. Dew_Process says:

    It was in a communal area; indeed during part of the time, the desk was shared with another Marine. Furthermore, it was in an area that many Marines in her Company had to frequent.

  4. Concerned Defender says:

    This appeal concerns LCpl Sterling’s placement of three slips of paper with a Biblical quotation at her workspace. In May 2013, LCpl Sterling was assigned to the Communications (S-6).  section of the 8th Communications Battalion, under the supervision of Staff Sergeant (SSgt) Alexander, her Staff NonCommissioned Officer in Charge (SNCOIC). (J.A.042.) During that assignment, LCpl Sterling’s duties required her to sit at a desk and use a computer to assist Marines experiencing problems with their Common Access Cards. (J.A.002.) LCpl Sterling self-identifies as a Christian and as a “religious person.” (J.A.079, 111, 114.) While working in the S-6 section, LCpl Sterling taped three small pieces of paper around her workspace, each containing the same printed quotation drawn from the Bible: “No weapon formed against me shall prosper.” (J.A.112.)1 LCpl Sterling regards the Bible “as a religious text,” and she consciously drew the quotation from “scripture.” (J.A.079.) In each instance, LCpl Sterling printed the quotation on one line of 8-1/2 x 11-inch paper, with the paper cut away so that only the printed text remained. (J.A.112-113.) Two of the quotations were printed in 28-point font, and the third was printed in a smaller font.  LCpl Sterling taped the smallest quotation above her computer screen, and she taped the other two on the side of her computer tower and along the top shelf of her incoming mailbox. 
     

    Perhaps someone can enlighten me how these are clearly offensive or even religious to the casual observer, or how they interfer or obstruct a work environment to the point of being ordered to remove them, any more than say if a person put a picture of her/his significant other on the desk?  These were small, obscure, and in no persons’ way.  
    By analogy, take a dollar bill out of your wallet.  What does it say, and where does it come from?  “In God We Trust.”  Are service members to be prohibited from handling currency now?  I could go on, you get the point.  
    Stupid for the NCO to bully her and even more stupid for the leadership to charge this or the JAG to not simply dismiss it.  Why bother.  They didn’t need it whatsoever given the pile of other misconduct.
    Serves as a good learning point for future TCs on what not to do. 

  5. Philip Cave says:

    It’s not just the CCA website.  It’s all JAG sites unavailable to the public.  Can’t even check the dockets to talk about docketing, read MLR or Army Lawyer.

  6. Joseph Wilkinson says:

    Perhaps someone can enlighten me how these are clearly offensive or even religious to the casual observer, or how they interfer or obstruct a work environment to the point of being ordered to remove them, any more than say if a person put a picture of her/his significant other on the desk?
     
    Context.   By her own statement (in the opinion) they were her response to people (presumably leadership) “picking on her at work.”  A sort of passive-aggressive rebuke to the leadership, a way of saying, “you can’t get at me or make me change my ways,” but trying to use religious verses to make it “untouchable.”   (Whereas if she’d posted a Dilbert cartoon about stupid or abusive bosses, she wouldn’t have that argument.)  It’s more subtle than if she had posted Psalm 22:16 (“For dogs have surrounded me; A band of evildoers has encompassed me”).    
     
    By analogy, imagine if a subordinate had been making urgent suggestions to his leadership, which (in his mind) they obtusely ignored.  To show his defiance he posts Q 2:6-7 (“Verily, those who disbelieve, it is the same whether you warn them or do not warn them, they will not believe.  God had set a seal on their hearts and on their hearings, and on their eyes there is a covering.  Theirs will be a great torment.”), but of course he says it’s just an inspirational verse from his religion.  Even on small cards, in a relatively unobtrusive way, the leadership may well understand it as insubordinate rather than merely inspirational, and demand it be removed.
     
    That may be why the command wanted this particular offense punished — to show people that you can’t use religious freedom as an excuse to subtly rebuke your leadership on duty.   I suppose even a picture of the missus could somehow be used that way, though I don’t care to dream one up right now.