Note: In honor of the death of former President George H. W. Bush, President Trump ordered the closure of all executive departments and agencies on Wednesday, December 5. CAAF will also close on Wednesday.

Update: All four cases scheduled to be argued at CAAF this week will be argued on Tuesday, December 4, 2018, beginning at 8 a.m., in the following order: Cooper, Forbes, Briggs, then Stout.

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

This week at CAAF: CAAF will hear oral argument in four cases this week:

Tuesday, December 4, 2018, at 9:30 a.m.:

United States v. Cooper, No. 18-0282/NA (CAAFlog case page)

Issues:
I. Did the lower court err not finding waiver of the right to request individual military counsel where Appellee was advised of his right to request an individual military counsel, agreed he understood the right but wanted instead to be represented by trial defense counsel, and made no motion for individual military counsel?

II. Did the lower court err in not applying the Strickland ineffective assistance test where the government and trial judge played no part in the defense’s failure to request individual military counsel, and if so, did Appellee suffer ineffective assistance of counsel?

III. If Strickland does not apply, did the lower court correctly find Appellee was deprived of his statutory right to request individual military counsel?

IV. Did the lower court err in it’s prejudice analysis for Appellee’s asserted deprivation of his statutory right to individual military counsel when Appellee did not preserve the issue at trial, raised the issue for the first time on appeal, and has alleged no specific prejudice?

Case Links:
NMCCA opinion
Appellant’s (Gov’t Div.) brief
Appelllee’s brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Briggs, No. 16-0711/AF (CAAFlog case page)

Issues:
I. Does the 2006 amendment to Article 43, UCMJ, clarifying that rape is an offense with no statute of limitations, apply retroactively to offenses committed before enactment of the amendment but for which the then extant statute of limitations had not expired.

II. Can Appellant successfully raise a statute of limitations defense for the first time on appeal.

Case Links:
AFCCA opinion
Blog post: SCOTUS remands
Blog post: CAAF grants
Appellant’s brief
Appelllee’s (A.F. App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Wednesday, December 5, 2018, at 9:30 a.m. (see note above)

United States v. Stout, No. 18-0273/AR (CAAFlog case page)

Issue: Whether the Government made major changes to the time frame of three offenses, over defense objection, and failed to prefer them anew in accordance with Rule for Courts-Martial 603.

Case Links:
ACCA opinion
Appellant’s brief
Appelllee’s (Army Gov’t App. Div.) brief
Appellant’s reply brief
• Blog post: Argument preview (working)

Followed by:

United States v. Forbes, 18-0304/NA (CAAFlog case page)

Issue: Whether the NMCCA erred in holding that Appellant was provident to sexual assault by bodily harm due to his failure to inform his sexual partners of his HIV status.

Case Links:
NMCCA opinion
Blog post: NMCCA opinion analysis
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (N.M. App. Gov’t Div.) brief
Appellant’s reply brief
Amicus brief in support of Appellant (OutServe-SLDN, Inc.)
• Blog post: Argument preview (working)

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, December 6, 2018, at 10 a.m.:

United States v. Solomon, No. 20160456

Issues:
I. Whether the military judge’s findings instructions are plain error.

II. The military judge prohibited the defense from conducting recross-examination. Did this deny appellant his Sixth Amendment right to confront the witnesses against him?

[III]. Whether it was harmless beyond a reasonable doubt for the military judge to prohibit the defense from presenting evidence that W.S. had a motive to fabricate.

Disclosure: I represent the appellant in my civilian capacity and will argue this case.

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

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on December 13, 2018. The argument will occur in the Navy-Marine Corps CCA’s courtroom aboard the Washington Navy Yard.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on December 20, 2018.

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