This week at SCOTUS: A petition for certiorari was filed in Herrmann v. United States, No. 17-593, on October 11, 2017. CAAF affirmed Sergeant (E-5) Herrmann’s conviction of reckless endangerment for the pencil packing of reserve parachutes by applying a plain-language meaning of the term likely in the element of conduct likely to produce death or grievous bodily harm, in United States v. Herrmann, 76 M.J. 304 (C.A.A.F. Jun. 19, 2017) (CAAFlog case page).

An extension of time to file a cert. petition was granted in Cash v. United States, No. 17A415. CAAF granted and summarily affirmed on July 25, 2017. 76 M.J. 478. The Army CCA summarily affirmed the trial result without issuing a written opinion.

The Solicitor General received a second extension of time to file the requested response to the cert. petition in Bartee.

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

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

Tuesday, October 24, 2017, at 9:30 a.m.:

United States v. Short, No. 17-0187/AR (CAAFlog case page)

Issue: Whether government counsel committed prosecutorial misconduct when they made improper argument after repeatedly eliciting inadmissible testimony.

Case Links:
• ACCA opinion
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview

Followed by:

United States v. Gonzalez-Gomez, No. 17-0200/AR (CAAFlog case page)

Issue: Whether dilatory post-trial processing violated Appellant’s due process rights and warrants relief when 782 days elapsed between docketing at the Army Court and opinion.

Case Links:
• ACCA opinion (75 M.J. 965)
• Appellant’s brief
• Appellee’s (Army Gov’t Appellate Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview

Wednesday, October 25, 2017, at 9:30 a.m.:

United States v. Bailey, No. 17-0265/CG (CAAFlog case page)

Issues:
I. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable.”
II. Whether the decision of the United States Coast Guard Court of Criminal Appeals is ambiguous as to whether the affirmed sentence included forfeiture of all pay and allowances.

Case Links:
• CGCCA opinion
• Appellant’s brief
• Appellee’s (Coast Guard Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview

Followed by:

United States v. Riesbeck, No. 17-0208/CG (CAAFlog case page)

Issues:
I. Whether the members of Appellant’s court-martial panel were properly selected.
II. Whether Appellant was deprived of a fair trial, or the appearance of a fair trial, where a majority of the panel members were former victim advocates and the military judge denied a challenge for cause against one of them.

Case Links:
• CGCCA opinion
• Blog post: CGCCA Finds Appellant Waived Challenge to Panel Make-up 
• Blog post: CAAF reverses
• CGCCA opinion
• Appellant’s brief
• Appellee’s (Coast Guard Appellate Gov’t Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on October 30, 2017.

This week at the AFCCA: The Air Force CCA will hear oral argument in one case this week, on Tuesday, October 24, 2017, at the Florida International University College of Law:

United States v. Swafford, No. S32435

Issue:
Was Appellant denied effective assistance of counsel when his counsel failed to move to suppress appellant’s statements to investigators made while in post-trial confinement for a previous court-martial?

This week at the CGCCA: The The Coast Guard CCA’s oral argument schedule – finally available on the CCA’s new website – shows no scheduled oral arguments at the CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s shows no scheduled oral arguments.

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