This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

The first oral argument of the 2018 term will occur on September 12, 2018, at the Keenan Ceremonial Courtroom, 500 Pearl Street, New York. The second will occur the following day, at the Fordham University School of Law in New York.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, August 30, 2018, at 10 a.m.:

United States v. Navarette, No. 20160786

Issues:
I. WHETHER THIS COURT SHOULD GRANT APPELLANT’S MOTION FOR A RCM 706 INQUIRY INTO THE PRESENT MENTAL CAPACITY OF APPELLANT.  SEE RCM 1203(C)(5) AND RCM 706.

II. WHETHER THIS COURT SHOULD GRANT APPELLANT’S MOTION FOR A RCM 706 INQUIRY TO ASSESS APPELLANT’S MENTAL RESPONSIBILITY AT THE TIME OF THE OFFENSE. SEE RCM 916(B)(2); RCM 916(K); RCM 1210 (F)(2); AND UNITED STATES V. CAMPBELL, 57 M.J. 134 (2002).

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 5, 2018.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on September 6, 2018.

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

20 Responses to “This Week in Military Justice – August 26, 2018”

  1. Kf says:

    No more oral arguments for CAAF this term?  Great!  That means they have some free time to work on the Barry opinion.

  2. Zachary D Spilman says:

    There I was. Thinking about the Barry opinion. And how much I want CAAF to take its time and get it right.

  3. Bionic Barry Dylan says:

    I wonder if they are waiting until the last day to drop the opinion because it is really going to light some people up, or if there is still some disagreement.  It’s been 4 weeks since they posted their last opinion.

  4. DCGoneGalt says:

    Maybe the opinion was done weeks ago and the day before it was going to be published, IT pushed a Windows update patch and it wiped it off the share-drive?

  5. Vulture says:

    The alleged victims wishes are to be respected.  And she did say “go slowly.”

  6. kf says:

    Zack, 
     
    By getting “it right,” I’m sincerely interested in what you believe that would entail.

  7. Zachary D Spilman says:

    It depends on what CAAF decides are the facts of the case, kf. See my argument preview

  8. Alfonso Decimo says:

    The timing may be based on the Navy JAG’s retirement date.

  9. Anonymous says:

    So the top lawyer in the Navy commits UCI, Barry sits in prison, and said lawyer gets to retire a Flag Officer without any discipline/charges?
    Par for the course.

  10. (Former) ArmyTC says:

    Anon 1121: Barry was convicted on 31 Oct 2014 and sentenced to three years confinement. I am sure he is not in fact sitting in prison, which means that a delay by C.A.A.F. here is not keeping him confined. Not that such a circumstance excuses the delay, but I am sure if the opposite were true it would be a factor in timing. 
    Then again, I’m also not of the mind that there is some broad reaching conspiracy at play to deprive SOCS Barry here. 

  11. Alfonso Decimo says:

     
    Anon 1121: I am with you in spirit, but (F)ATC is correct there’s no broad conspiracy and the Senior Chief isn’t sitting in prison. Still, while serving as the Deputy JAG, he allegedly committed UCI and there is a factual dispute as to whether he threatened the CA’s career, or merely advised him to follow his SJA’s advice. He also asserted the Navy is not under political pressure regarding sexual assault cases. Now he will retire as a 3-star. The scrutiny doesn’t seem proportionate to the scandal, particularly by Navy standards.
     

  12. Philip D. Cave says:

    I predict retired with two.
     
    I predict Barry wins 3-2.

  13. DCGoneGalt says:

    If CAAF does come back and find UCI, based on nothing more than what we think we know now, you honestly see him losing a star?  I don’t.  In my opinion, he would have crossed the line.  But crossing the line on this topic will get you called out by appellate judges but I seriously doubt it will get you called out by the Pentagon.  The actions of the Pentagon and the services leadership over the past decade shows they encourage this type of thing . . . just don’t expect it to get put on paper or outed by those in leadership positions.

  14. AnnoyingProle says:

    Also, the UCI in question is, what, a 2-star telling another 2-star the stupidly obvious?  “Hey, if you choose to flip a judge’s conviction, that might get some negative attention.”  What rock is the CA pretending he’d been hiding under, that he missed the last decade of politics and news?
    The CA didn’t have the spine to do anything at the time, and now he’s claiming that the DJAG’s pressure of mentioning something only the galactically stupid would have missed….that’s what kept him from exercising his conscience? 
    Don’t get me wrong–the DJAG should have reiterated the bland, empty and banal advice expected of a JAG in his position, rather than casually advising a peer.  But let’s not act like it was some nefarious threat he was throwing at the CA while twirling a mustache, in some contrived scheme to deprive Barry of his rights.

  15. Vulture says:

    Tell all that to General Franklin.

  16. Nathan Freeburg says:

    Phil,
    For once we’re going to have to disagree.  Only way you lose a star is with “UCI” for acquittal.  Certainly not for a conviction in a 120.
    It’s like the clients charged with a 120 that want to bring media attention to the injustices in their case.  Not gonna happen.  

  17. C L says:

     

    U.S. v. Navarette
    On 14 December 2016, at a general court-martial convened at Fort Drum, New York, SPC Jeremy N. Navarette, United States Army, was convicted by a military panel composed of officer and enlisted members, contrary to his plea, of one specification of wrongfully distributing cocaine in violation of Article 112a, UCMJ. The members sentenced the accused to be reduced to the grade of E-1, to forfeit all pay and allowances, to be confined for 90 days, and to be discharged from the service with a bad-conduct discharge. 

  18. Fisch says:

    Annoying Prole,
     
    I agree that DJAG did not hatch some nefarious scheme against one Sailor.  I highly doubt that DJAG saw him as a person, but rather viewed him as collateral damage in the war on sexual assault in the military. Thus issue goes far deeper.  The highest ranking attorney Officers in two services have shown through their advice that the highest levels of our military have an inflexible disposition towards Article 120 offenses.  Why?  Congress putting their fingers on the scales of justice and influencing the highest levels of the Pentagon.
     
    I listened to the oral arguments and what I did not hear from the Government was all the wonderful arguments Crawford made about the merits of the case and the evidence that clearly showed Barry was guilty. Perhaps it is because DJAG didn’t know the facts of the case, so the only thing he could say was “You have a smart SJA and dobn’t paint a target on your back” according to Lorge.
     
    But if this case is not dealt with in the right way, I think Article 37 could be about as potent as Article 10 in protecting accused Servicemen’s rights.
     
     

  19. Alfonso Decimo says:

    Fisch – Well said! I will add that it’s not at all clear it wasn’t a nefarious threat. Tony Soprano isn’t just being Captain Obvious when he says, “bad things could happen.” But if a DJAG thinks he was misunderstood when he intended only to casually chat in an off-the-record manner about obvious things, then it’s still the JAG equivalent of a SWO accidentally colliding with a fishing trawler. – Alex

  20. retired says:

    If an SJA believes they identify potential UCI (e.g. is concerned about CA phoncon but CA has not taken action yet), can SJA try to cure the concern by: 1) advising CA to send case up to level of apparent UCI, 2) getting the CA a letter (from CNO/VCNO or whatever principal rank DJAG is arguably wearing) stating that no particular outcome is desired, 3) getting new clean CA, or 4) is there some better course?  

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