Significant military justice event this week: The Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) will hold a public meeting this Friday, September 7, 2018 from 11:00 a.m. to 1:00 p.m., at One Liberty Center, 875 N Randolph Street, Suite 150, Arlington, Virginia 22203. Additional details about the meeting are available here.

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 Wednesday, September 5, 2018, at 10 a.m.:

United States v. Myer, No. 20160490

I. Whether appellant was denied his Sixth Amendment right to effective assistance of counsel where defense counsel failed to reasonably investigate, present crucial evidence, and cross examine witnesses.

II. Whether Article 133 is unconstitutionally void for vaguesness as it applies to appellant’s conduct.

This week at the AFCCA: The Air Force CCA will hear oral argument in two cases this week. On Wednesday, September 5, 2018, at 10 a.m., the court will hear oral argument in United States v. Hyppolite, No. 39358. On Thursday, September 6, 2018, at 10 a.m., the court will hear oral argument in United States v. Seeto, No. 39247. The argument in Seeto will not be open to the public. No additional information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard CCA will hear oral argument in one case this week, on Wednesday, September 6, 2018, at 10 a.m.:

United States v. Hernandez

I. Whether the three specifications of the sole charge  were multiplicious where the three actions occurred nearly simultaneously, involved a single subject, and effectuated a single purpose?

The argument will occur in the United States Navy‐Marine Corps Court of Criminal Appeals Courtroom 1254 Charles Morris Street SE, Bldg. 58, Suite 320, Washington Navy Yard, DC 20374.

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 – September 3, 2018”

  1. Vulture says:

    Possible Seeto isn’t being seen by the public because it follows from a direct confrontation of the CA and MJ.  Opinion 2017.  Lost record and a court with selective tunnel vision.  I can imagine they would want everybody else to see it the same way.  
    Or maybe its another Seeto.

  2. Philip D. Cave says:

    Barry is out — I was correct 3 -2 for Barry.

  3. Philip D. Cave says:

    Closer read — 5-0.

  4. J.M. says:

    Great news for Chief Barry. What does the mean for the Navy, in regards to their current JAG, and 120 cases?

    The DuBay military judge found that VADM DeRenzi, RADM Lorge, and LCDR Dowling were all credible witnesses in this case. No such finding was made as to RADM Crawford or CDR Jones.

    That’s a bold statement to make. 

  5. Tami a/k/a Princess says:

    CAAF just decided Barry today.  While the opinion is technically 3-2 (as predicted), the outcome is really 5-0.
    I was surprised the majority found actual unlawful influence, as opposed to apparent unlawful influence.  Regardless, it’s a powerful message–do NOT discuss specific cases with convening authorities!  And leave the politics out of it.

    Consequently, “[t]his Court … is dedicated to the Code’s objective to protect the court-martial processes from improper command influence.” United States v. Cole, 17 C.M.A. 296, 297, 38 C.M.R. 94, 95 (1967). We are likewise committed to preventing interference from non-command sources. We take this responsibility seriously, for its fulfillment “is fundamental to fostering public confidence in the actual and apparent fairness of our system of justice.” United States v. Harvey, 64 M.J. 13, 17 (C.A.A.F. 2006).
    RADM Lorge’s action states:  In my seven years as a General Court-Martial Convening Authority, I have never reviewed a case that has given me greater pause than the one that is before me now. The evidence presented at trial and the clemency submitted on behalf of the accused was compelling and caused me concern as to whether SOCS Barry received a fair trial or an appropriate sentence . . . .  Additionally, having personally reviewed the record of trial, I am concerned that the judicial temperament of the Military Judge potentially calls into question the legality, fairness, and impartially [sic] of this court-martial.  The validity of the military justice system depends on the impartiality of military judges both in fact and in appearance. If prejudicial legal error was committed, I strongly encourage the Appellate Court to consider remanding this case for further proceedings or, in the alternative, disapproving the punitive discharge.
    The discordance between the action taken and both the sentiments included in the above excerpt and RADM Lorge’s post-trial affidavits is palpable. Cf. Captain, 75 M.J. at 105−06; United States v. Loft, 10 M.J. 266, 268 (C.M.A. 1981) (where this Court’s predecessor used surrounding documentation to interpret an otherwise unclear convening authority action). Given the above, the question remains how and why the United States Navy-Marine Corps Court of Criminal Appeals concluded that the finding and sentence “should be approved” without further inquiry. United States v. Politte, 63 M.J. 24, 25 (C.A.A.F. 2006) (finding that the lower court erred in failing to return a convening authority’s action for clarification where there was ambiguity).

    What do these comments mean for the NMCCA?

  6. Tami a/k/a Princess says:

  7. Alfonso Decimo says:

    In addition, there are some facts the SJA gave erroneous advice and that the MJ’s judicial temperament showed a lack of impartiality. Hopefully, the Navy JAG Corps will review it’s training and procedures for selecting SJAs and MJs based on this opinion.