This week at SCOTUS: As discussed here, Collins filed his response to the Solicitor General’s cert. petition, and the alleged victims (of both Collins and Daniels) filed an amicus brief in support of the petition. In other news, the petitions in Briggs are Camacho are scheduled for conference on Oct. 1, and the solicitor general received an extension of time to file the requested response in Richards. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:
- United States v. Briggs, No. 19-108 (pend. conf. on Oct. 1)
- United States v. Collins, No. 19-184 (pet. filed Aug. 9; Collins resp. filed Sep. 9; Daniels resp. due Oct. 9)
- Richards v. Donovan, et al., No. 19-55 (pet. filed Jun. 8; resp. req. Aug. 14, due Oct. 15)
- Livingstone v. United States, No. 19-5256 (pro se pet. dkt. Jul. 19; resp. waived Jul. 31; pend. conf. on Oct. 1)
- Camacho v. United States, No. 19-243 (pet. filed. Aug 21; resp. waived Sep. 3, pend conf. on Oct. 1)
- McDonald v. United States, No. 19A191 (ext. of time to file cert. pet. granted to Oct. 26)
This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.
This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, September 19, 2019, at 10 a.m.:
United States v. Smith, No. 20180156
Issue: Whether the court-martial was improperly convened where the convening authority considered criteria not listed in Article 25, UCMJ, when selecting panel members.
This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 30, 2019.
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 Friday, September 20, 2019, at 12:45 p.m.:
United States v. Kunishige, No. 201800110
Case Summary: A panel of members with enlisted representation sitting as a general court-martial convicted Appellant, contrary to his pleas, of violation of a lawful order, rapeand sexual abuse of a child, sexual assault, aggravated assault, assault consummated by battery, solicitation and distribution of child pornography, receipt and possession of child pornography, obstruction of justice, and adultery,in violation of Articles 92, 120, 120b, 128, and 134, UCMJ, 10 U.S.C. §§892, 920, 920b, 928, 934 (2016). The members sentenced Appellant to thirty-nine years of confinement, reduction to pay grade E-1, forfeiture of all pay and allowances, and a dishonorabled ischarge.The Convening Authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered the sentence executed.
I. The United States argues that Appellant waived his right to discovery of communications relating to the members’ selection process. Did Appellant waive his right to discovery in light of: 1) the civilian trial defense counsel’s two written motions; 2) the military judge’s order granting the motion to compel discovery; 3) the civilian trial defense counsel’s repeated attempts to enforce the military judge’s order during trial; and 4) the trial counsel’s conflicting statements about the existence of discovery and completeness of discovery provided?
II. Did the government’s actions in 1) disclosing responsive communications on the last day of trial during presentencing proceedings; and 2) disclosing additional responsive communications shortly before a post-trial Article 39(a) session constitute a discovery violation?
III. Was Appellant materially prejudiced by either alleged discovery violation?