This week at SCOTUS: The Solicitor General filed a response opposing the cert. petition in Abdirahman, et al. (the Ortiz trailer cases). The SG also received an extension of time to file the requested response in Bartee, to October 30. Finally, the Court will consider the petitions in Dalmazzi, Cox, and Ortiz on Monday. Steve Vladeck – who is counsel of record for all three petitions – published this post on Friday discussing the cases and issues.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, September 27, 2017, at noon. The argument will occur at the USC Gould School of Law, 699 Exposition Blvd, Los Angeles, California:

United States v. Morales, No. 20150498

Issues:
I. Whether the magistrate had a substantial basis for determining existence of probable cause to believe appellant had committed the crime of indecent viewing?

II. Whether the magistrate’s search authorization was overbroad?

III. Whether a photograph constitutes “digital communication” such that the digital forensic examiner properly reviewed photographs on appellant’s phone?

IV. Whether the military judge abused her discretion by denying the motion to suppress results of the digital forensic examination?

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 24, 2017. The argument will be heard at the Florida International University College of Law.

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 Wednesday, September 27, 2017, at 10 a.m.:

United States v. Chamblin, NMCCA No. 201500388

Case Summary: A military judge sitting as a special court-martial convicted the appellant, pursuant to his pleas, of one specification of willful dereliction of duty, two specifications of violating a lawful general order, and one specification of wrongfully urinating on deceased enemy combatants in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934 (2008). The military judge sentenced the appellant to thirty days’ confinement, sixty days’ restriction, reduction to pay grade E-3, forfeiture of $500 pay per month for six months, and a $2,000 fine. Pursuant to a pretrial agreement, the convening authority disapproved the sixty days’ restriction, $2,000 fine, and reduction below pay grade E-5, suspended execution of confinement and forfeiture of $500 pay beyond one month, and then ordered the sentence executed.

Issues:
I. In light of the Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963), did the Government violate Staff Sergeant Chamblin’s constitutional right to due process when it failed to provide evidence of unlawful command influence that was favorable and material evidence?

II. Whether the Commandant of the Marine Corps and his subordinate personnel exerted unlawful command influence and/or created the appearance of unlawful command influence over Staff Sergeant Chamblin’s court-martial.

12 Responses to “This Week in Military Justice – September 24, 2017”

  1. Stephen Wilson says:

    Interesting article from Lawfare on “The Supreme Court and Military Control of Civil Offices”. 

  2. Zachary D Spilman says:

    That’s the post referenced and linked to in the SCOTUS section, Stephen Wilson.

  3. Stephen Wilson says:

    Sorry, Zack, I had been saving that link since I read it on Friday waiting for your Sunday summary and didn’t even read your post. My bad😬

  4. Scott says:

    How did Chamblin reach NMCCA?  Isn’t that sentence “subjurisdictional”?

  5. Tom Booker says:

    Scott:  Article 69(d) of the Uniform Code of Military Justice, 10 U.S.C. 869(d), is the likely vehicle.  The case would have been reviewed in the Office of the Judge Advocate General and then would have been referred to NMCCA, most likely on Appellant’s motion (but “by order of the Judge Advocate General.”).  Review in those cases is confined to legal error.
     
    Respectfully, LTB

  6. Tom Booker says:

    Interesting issues posed by Professor Vladeck, perhaps the most interesting one being “what is a poor commissioned officer to do if ordered to sit on CMCR”?  Is it a lawful order, regardless how dire the consequences?  (And just what does this “termination” look like?  Does it come with bad paper and therefore no retirement/no benefits?)  Is it an arguably unlawful order that the officer disobeys at his peril?
     
    Respectfully, LTB

  7. Alfonso Decimo says:

    Tom – The detailers wouldn’t like it and there would be consequences, but I don’t think anybody can be forced to take orders to sit on the CMCR.

  8. Tom Booker says:

    Alfonso Decimo:  Yes, “punitive detailing,” here we come.
     
    Because Vladeck’s paper is the meat of his argument on the certiorari petition, I don’t want to pick it apart.  Suffice it to say that it could be picked apart.
     
    Respectfully, LTB

  9. Dew_Process says:

    Has anyone seen the SCOTUS grant/denied order for today after yesterday’s long conference?

  10. Zachary D Spilman says:

    Grants from the long conference aren’t expected until Thursday. 

  11. Ryan Yoder says:

    Certiorari was granted in Dalmazzi, Ortiz, and Cox and they were consolidated. 
    Available at https://www.supremecourt.gov/orders/courtorders/092817zr_9o6b.pdf

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