This week at SCOTUS: A petition for certiorari (available here) was filed in Andrews v. United States, No. 18-343, on September 13th.

In United States v. Andrews, 77 M.J. 393 (C.A.A.F. May 22, 2018) (CAAFlog case page), CAAF unanimously rejected the Navy-Marine Corps Appellate Government Division’s argument that the failure to object to improper argument at trial waives any error on appeal, and found any improper argument by the prosecution in the case to be harmless. The cert petition challenges CAAF’s application of the harmless error test, asserting that “CAAF does not adequately distinguish between the improper arguments of military prosecutors that infringe on an accused’s constitutional rights and those that do not.” Pet. at 3.

In other news, the Solicitor General waived the right to respond to the cert. petition in Larrabee

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

This week at CAAF: CAAF completed its oral argument calendar for the 2017 term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The 2018 term begins on October 1, 2018. The next scheduled oral argument at CAAF is on October 23, 2018.

This week at the ACCA: The Army CCA will hear oral argument in three cases this week:

Wednesday, September 26, 2018, at 10 a.m.:

United States v. Rice, No. 20160695

Issues:
I. DID THE MILITARY JUDGE ERR BY NOT DISMISSING SPECIFICATIONS 2-4 OF CHARGE II AS A VIOLATION OF THE DOUBLE JEOPARDY CLAUSE?

II. DID APPELLANT WAIVE A CLAIM FOR RELIEF FROM THIS COURT THAT THE MILITARY JUDGE ERRED BY NOT DISMISSING SPECIFICATIONS 2-4 OF CHARGE II AS A VIOLATION OF THE DOUBLE JEOPARDY CLAUSE, WHEN APPELLANT RECEIVED HIS REQUESTED RELIEF FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA WHEN THAT COURT DISMISSED APPELLANT’S CONVICTION OF THESE OFFENSES?

III. EVEN IF THE MILITARY JUDGE ERRED BY NOT DISMISSING SPECIFICATIONS 2-4 OF CHARGE II AS A VIOLATION OF THE DOUBLE JEOPARDY CLAUSE AND APPELLANT DID NOT WAIVE THE ISSUE, WHAT ERROR EXISTS AT THIS TIME WHICH MATERIALLY PREJUDICES APPELLANT’S SUBSTANTIAL RIGHTS WHEN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA HAS DISMISSED APPELLANT’S CONVICTION TO THE SAME POSSESSION OF CHILD PORNOGRAPHY ON DOUBLE JEOPARDY GROUNDS?

Wednesday, September 26, 2018, at 3:45 p.m.:

United States v. Turner, No. 20160131

Issues:
I. WHETHER SPECIALIST TURNER’S CONVICTION FOR OBSTRUCTION OF JUSTICE IS FACTUALLY INSUFFICIENT.

II. WHETHER THE GOVERNMENT IMPERMISSIBLY PRESENTED CONFLICTING THEORIES OF LIABILITY AT THE TRIALS OF SPECIALIST TURNER AND HIS CO-ACCUSED.

Thursday, September 27. 2018, at 2 p.m.:

United States v. Hasan, No. 20130781

Issues:
I. WHETHER APPELLATE COUNSEL SHOULD BE PERMITTED TO REVIEW THE FOLLOWING SEALED APPELLATE EXHIBITS:  APP. EX. 41; APP. EX. 334; APP. EX. 336; APP. EX. 347, ENCLS. 1-3; APP EX. 348; APP EXS. 352-352; APP EX. 389; APP EX. 390; APP EX. 397; APP. EX. 426; AND TRIAL TRANSCRIPT PAGES 2195-2208.  SPECIFICALLY, COUNSEL SHOULD ADDRESS THE POTENTIALLY PRIVILEGED NATURE OF THESE EXHIBITS UNDER MIL. R. EVID. 502.

II. WHETHER APPELLANT SHOULD BE GRANTED THE ASSISTANCE OF LEARNED COUNSEL ON APPEAL. COUNSEL SHOULD BE PREPARED TO ADDRESS THE NECESSITY, AVAILABILITY AND FEASIBILITY OF APPOINTING LEARNED COUNSEL.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on October 2, 2018.

2 Responses to “This Week in Military Justice – September 23, 2018”

  1. Vulture says:

    Oh, boy.  When field grades start posing questions of ‘feasibility’ you know it’s going to be a rocky road.

  2. Vulture says:

    Let me clarify on Hasan.
    A course of action is, by doctrine, to be
    1) Appropriate
    2) Distinguishable
    3) Feasible
    It’s a basis staff competency to be able to answer questions of how separately from questions of if.  ACCA judges are not staff, not even ACC, but use of the term, from the point of view of the DAD counsel, requires address in the organizational context.  IMHO

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