This week at SCOTUS: A new petition for certiorari was filed in Dinger v. United States on October 5, 2018. The petitioner is a retired member of the Marine Corps who pleaded guilty to a number of child exploitation offenses, all of which were committed after he entered retired status following the completion of 20 years of enlisted service in the active component. A pretrial agreement provided for suspension of all confinement in excess of eight years, but the agreement did not protect Dinger from a punitive discharge. Such a discharge was adjudged and approved, and CAAF unanimously affirmed that such a punishment is authorized for a retired member in United States v. Dinger, 77 M.J. 447 (C.A.A.F. Jun. 18, 2018) (CAAFlog case page).

The cert. petition doesn’t challenge CAAF’s conclusion that the punitive discharge is authorized. Instead, it asserts that CAAF’s decision is new law that may not fairly apply retroactively to Dinger. The question presented is:

After petitioner’s offenses, the Court of Appeals for the Armed Forces overruled two precedents without fair warning and held that a court-martial can sentence retired Navy and Marine Corps personnel to a dishonorable discharge. Did it violate due process to apply the new rule to him? See Bouie v. City of Columbia, 378 U.S. 347 (1964).

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

This week at CAAF: 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 one case this week, on Thursday, October 18, 2018 at 10 a.m.:

United States v. Williams, No. 20160231

I. Whether appellant received ineffective assistance of counsel when trial defense counsel knowingly failed to disclose an actual conflict of interest.

II. Whether the military judge erred by admitting hearsay obtained by a multi-disciplinary team led by law enforcement as medical hearsay.

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 Tuesday, October 16, 2018, at 1 p.m.:

United States v. Jeter, No. 201700248

Case Summary: A panel of officers sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of sexual harassment, two specifications of drunken operation of a vehicle, three specifications of sexual assault, one specification of extortion, one specification of burglary, two specifications of conduct unbecoming an officer, one specification of communicating a threat, and two specifications of unlawful entry in violation of Articles 92, 111, 120, 127, 129, 133, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 911, 920, 927, 929, 933, and 934 (2016). The appellant was sentenced to twenty years’ confinement and a dismissal. The convening authority approved the sentence as adjudged and, except for the dismissal, ordered the sentence executed.

I. After removing minority and female members from a panel, the government must provide a demographic-neutral reason for the removals. The convening authority removed two African Americans and three women from the appellant’s members panel and replaced them with only white men. Was it error to not require a demographic-neutral explanation after the defense objected?

[II]. Evidence admitted under military rule of evidence 404(b) must be materially relevant and the probative value must outweigh the prejudice. The military judge instructed the members they may use evidence that was not materially relevant and invited character inferences to prove intent and motive. Did the military judge err in assessing the material relevance, probative value and prejudicial effect on the evidence?

One Response to “This Week in Military Justice – October 14, 2018”

  1. Michael Lowrey says:

    The audio of Jeter has now been posted.