This week at SCOTUS: The cert. petition in Larrabee was distributed for conference on October 12, 2018, and the Solicitor General waived the right to respond to the cert. petition in Andrews.

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 two cases this week, both on Thursday, October 4, 2018:

At 10 a.m.:

United States v. Thompson, No. 20170150

Issue: Whether government counsel committed prosecutorial misconduct when they used perjured testimony that affected the judgment of the panel.

At 11:30 a.m.:

United States v. Jessie, No. 20160187

Issue: Whether military correctional complex standard operating procedure 310, “sex offender contact with minor children,” unlawfully increases appellant’s sentence by precluding appellant from contacting his children in violation of appellant’s fifth and first amendment rights.

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 Navy-Marine Corps CCA will hear oral argument in one case this week, on October 2, 2018, at 1 p.m.:

United States v. Jennings, NMCCA No. 201700241

Case Summary: A panel of officers sitting as a general court-martial convicted the appellant, contrary to his pleas, of six specifications under Article 80, Uniform Code of Military Justice (UCMJ), and one specification of solicitation under Article 134, UCMJ. The members sentenced the appellant to three years’ confinement, reduction to pay grade E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the punitive discharge, ordered the sentence executed.

Issues:
[I]. Whether the government failed to disprove the defense of entrapment—that the Naval Criminal Investigative Service agent did not induce the appellant or that the appellant was predisposed to commit this crime.

[II]. The government cannot use liberty risk as a subterfuge for restriction. Here, the government held the appellant on liberty risk, which restricted him to base, for 732 days (513 days prior to arraignment). Did the government’s actions constitute restriction under Rule for Courts-Martial 304(a)(2) and trigger Rule for Courts-Martial 707?

[III]. The Sixth Amendment guarantees a servicemember the right to effective assistance of counsel. The appellant spent 732 days in restriction, which started the government’s Rule for Courts-Martial 707, 120-day clock. Were trial defense counsel deficient by failing to assert the appellant’s speedy trial rights?

3 Responses to “This Week in Military Justice – September 30, 2018”

  1. SgtDad says:

    United States v. Thompson, No. 20170150
    Issue: Whether government counsel committed prosecutorial misconduct when they used perjured testimony that affected the judgment of the panel.
    is there some reason why the answer is not obviously “yes?”  Is this not acriminal conspiracy to violate the fundamental rights of the accused?  A fraud on the court?  A court martial offense for trial counsel?  Immediate relief for the TC’s CO?  Relief and dismissal for the trial judge?
    Am I to believe the lesson in Berger v. U.S. is not applicable to courts martial?

  2. Fisch says:

    SgtDad,
     
    The word that is conspicuously missing in the framing of the issue in Thompson, is “knowingly” used perjured testimony. 

  3. TC says:

    That is also the issue as framed by the defense.  That’s not necessarily accurate.

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