This week at SCOTUS: A new cert. petition (available here) was filed in Cooper v. United States, No. 18-423, on May 13, 2019. In United States v. Cooper, 78 M.J. 283 (C.A.A.F. Feb. 12, 2019) (CAAFlog case page), a nearly-unanimous court found finds that the failure to request individual military defense counsel after a military judge discusses the right to make such a request with the accused is a knowing and intentional waiver of the right. The question presented in the petition is:
Whether the United States Court of Appeals for the Armed Forces exceeded its statutory authority under 10 U.S.C. § 867(c) when it took action with respect to a matter of fact.
The petition asserts:
The CAAF reversed the lower court because it found Cooper knowingly and intelligently waived his right to IMC. (Pet. App. 4a, 16a.) But what a defendant knew or understood at any given moment in time is a historical fact: making a state of mind determination calls for a “recital of external events and the credibility of their narrators.” Thompson v. Keohane, 516 U.S.99, 110 (1995) (internal quotations omitted).
The CAAF took action on a matter of fact—an authority specifically withheld from CAAF and provided to the NMCCA. Compare 10 U.S.C. § 866(c) with 10 U.S.C. §867(c). In exercising its authority under 10 U.S.C. § 866(c), the NMCCA found, as fact, that Cooper did not make a knowing and intelligent waiver of his right to IMC. Without so much as a declaration that this finding was clear error, the CAAF disagreed.
Pet at 12.
Additionally, the Solicitor General requested and has received an extension of time – until June 22, 2019 – to seek certiorari of CAAF’s decision in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page).
Finally, the cert. petition in Hale was distributed for conference on May 30, 2019.
I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:
- Hale v. United States, No. 18-1383 (pend. conf. on May 30)
- Cooper v. United States, No. 18-423 (pet. filed May 13; resp. due Jun. 13)
- United States v. Briggs, No. 18AA1168 (ext. of time to file pet. granted to Jun. 22)
This week at CAAF: CAAF will hear oral argument infour cases this week:
Tuesday, May 21, 2019, at 9:30 a.m.:
United States v. English, No. 19-0050/AR (CAAFlog case page)
Issue: Whether the Army Court of Criminal Appeals can find the unlawful force, as alleged, factually insufficient and still affirm the finding based on a theory of criminality not presented at trial.
United States v. Navarette, No. 19-0066/AR (CAAFlog case page)
I. Whether the Army Court erroneously denied appellant a post-trial R.C.M. 706 inquiry by requiring a greater showing than a non-frivolous, good faith basis articulated by United States v. Nix, 15 C.M.A. 578, 582, 36 C.M.R 76, 80 (1965).
II. Whether the Army Court erred when it held that submitting matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), was evidence of Appellant’s competence during appellate proceedings.
Wednesday, May 22, 2019, at 9:30 a.m.:
United States v. Coleman, No. 19-0087/AR (CAAFlog case page)
Issue: Whether Specification 1 of Charge VII is multiplicious with Specification 1 of Charge I, as they are part of the same transaction.
United States v. Hyppolite, II., Nos.19-0119/AF & 19-0197/AF (CAAFlog case page)
Granted issue: Whether the military judge’s erroneous admission of evidence regarding Specifications 1, 2, and 3 as a common plan or scheme for Specifications 4 and 5 was harmless.
Certified issue: Did the Air Force Court of Criminal Appeals err when it found the military judge abused his discretion by ruling that the evidence regarding Specifications 1, 2, and 3 could be considered as evidence of a common plan or scheme for Specifications 4 and 5.
• AFCCA opinion
• Blog post: CAAF grants review
• Blog post: JAG cross-certifies
• Granted Issue: Appellant’s brief
• Granted Issue: Appellee’s (Gov’t Div.) brief (granted issue
• Certified Issue: Cross-Appellant’s (Gov’t Div.) brief
• Certified Issue: Cross-Appellee’s brief
• Certified Issue: Cross-Appellant’s (Gov’t Div.) reply brief
This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.
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’s website shows no scheduled oral arguments.