CAAF issued a show cause order yesterday in the Army case of Brasington v. United States, No. 10-8008/AR.  Can anyone tell us what the issue in the case is?

Through the first half of its current term, CAAF has received just 303 petitions for review, obviously setting the court on pace to receive just 606 petitions this term if the intake continues at the same rate.  We looked at the previous 11 terms’ intake here.  The low over those terms occurred in FY 2003, when CAAF received 694 petitions.

Not surprisingly, with its input down, CAAF’s output is also down.  So far CAAF has issued 16 opinions of the court.  If I count correctly, there are another 16 cases that have been orally argued at CAAF that haven’t yet been decided.  Oral argument is scheduled in another 10 cases.  I don’t believe there are any other granted cases awaiting oral argument.  And at this point it’s too late to squeeze in a normal briefing schedule before the last day currently set aside for oral arguments this term — 4 May.  Of course it’s always possible that CAAF will add more argument dates, decide another case without briefing or argument (as it did Bradford on Friday) or order expedited briefing.   But absent such a departure from normal procedures, it appears that CAAF will issue 42 opinions of the court this term.  Here are the number of opinions of the court issued in the previous 10 terms:

September Term 2008:  46

FY 2008 Term:  65 [this was an 11-month term]

FY 2007 Term:  55

FY 2006 Term:  76

FY 2005 Term:  64

FY 2004 Term:  57

FY 2003 Term:  57

FY 2002 Term:  75

FY 2001 Term:  73

FY 2000 Term:  110

Here is a link to CAAF’s announcement of the Serianne argument scheduled for March 2, 2010 at 9:30 a.m.  Here and here are links to our prior coverage of the case.  The certified issues in the case are:

(1) whether the Navy-Marine Corps Court of Criminal Appeals erroneously held that the duty imposed on sailors by Chief of Naval Operations Instruction 5350.4C to notify their commanding officer of an arrest by civil authority for an alcohol-related offense compelled a testimonial communication that was incriminating; and

(2) whether the Navy-Marine Corps Court of Criminal Appeals erroneously held that no exception to the Fifth Amendment self-incrimination clause, including the regulatory exception developed in California v. Byers , applies to the reporting requirement in Chief of Naval Operations Instruction 5350.4C

The case of LCDR Matthew Diaz is also set for argument following the Serianne argument.  If you don’t know what Diaz is about, (a) you have been in a hole for the last few years and (b) well here are the issues:

(1) whether the lower courts misread the scienter and national security elements of the Espionage Act;

(2) whether the military judge abused his discretion in rejecting as irregular Appellant’s proferred guilty plea to a violation of Article 133;

(3) whether the evidence of the circumstances under which an accused acted, including his motive, is relevant to a charge under Article 133.

If you will recall the Diaz argument at Pepperdine Law School was snowed out in February–how odd does that sentence sound?  The argument doesn’t say anything about counsel from Pepperdine Law participating.

Due to the ongoing weather problems in the DC area, the Pepperdine Project Outreach has been scratched and the Diaz argument will apparently be held in March in Washington, D.C.  It will be interesting to see whether counsel for Pepperdine’s law school, which has been granted amicus status in the case, still participates in the oral argument.

We’ve learned from counsel in one of this week’s CAAF Project Outreach arguments that both have been postponed and will be rescheduled in March.  My understanding is that the cases will be argued in Washington, D.C.

CAAF interlocutory order entered in United States v. Diaz, No. 08-0535/NA, on 14 January 2010:  “On consideration of the motion filed by the National Association of Criminal Defense Lawyers for leave to file brief as Amicus Curiae, said motion is hereby granted.  The request to participate in oral argument is denied.”

CAAF interlocutory order entered in Diaz on 1 February 2010:  “On consideration of the motions filed by Pepperdine University Law School to appear as Amicus Curiae, to present oral argument, to file brief on behalf of Amicus Curiae out of time, and to allow appearance of law students, it is ordered that said motions are hereby granted.”

It appears that sometime around the Marine Corps’ birthday, there was a shift in CAAF’s practice.  Before then, the court routinely granted motions to attach documents while occasionally denying such motions.  After then, the court routinely denied motions to attach documents while occasionally granting such motions.  But yesterday, CAAF issued a 3-2 order to grant such a motion.

On 15 June 2009, SrA Colvano’s appellate defense counsel moved to file a declaration from a psychologist describing her diagnosis of the appellant’s PTSD and explaining his condition’s and medication’s effect on the appellant’s behavior.  The government opposed the motion.

Yesterday, CAAF summarily granted the motion.  United States v. Colvano, __ M.J. ___, No. 09-0597/AF (C.A.A.F. Jan. 28, 2010).  But Judge Ryan, joined by Judge Erdmann, dissented.  Here’s their reasoning:

Article 67(a), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(a) (2006), authorizes this Court to “review the record” in certain cases.  The attachment at issue is not part of “the record”: it was presented neither at trial nor at the Court of Criminal Appeals (CCA).  Appellant gives no reason for his failure to add this material to the record before now.

C.A.A.F. R. 30A(a) recognizes that we “will normally not consider any facts outside of the record established at the trial and the Court of Criminal Appeals.”  Since this limitation is consonant with Article 67, UCMJ, it seems a prudent rule.  Nothing indicates that the circumstances under which this attachment is presented are extraordinary: Appellant asserts that the document he seeks to attach is “necessary to show . . . what contributed to [his] negative behavior, the severity of his PTSD, and his need for continued therapy,” but he proffers no reason, let alone good cause, for failing to present it to the CCA.  Before we depart from the “normal” practice memorialized in Rule 30A(a), a movant must show that his situation is somehow unusual.  Because Appellant has not done so, I would follow the mandate of Article 67, UCMJ, and the “normal” practice discussed in Rule 30A(a) and deny the motion.

Interestingly, in another order issued yesterday, CAAF granted an appellant’s motion to attach an affidavit without dissent.  United States v. Perry, __ M.J. __, No. 10-0074/AR (C.A.A.F. Jan. 28, 2010).

A comment to our post about NACDL’s amicus brief in United States v. Diaz, No. 09-0535/NA, asked if anyone has a copy of the brief.  Ask and ye shall receive.  We’ve posted it here.

On 9 February, CAAF will hear oral argument in United States v. Diaz, No. 09-0535/NA, at Pepperdine University School of Law in Malibu, California.  NACDL moved to file an amicus brief and to participate in oral argument.  On Thursday, CAAF granted NACDL’s motion to file an amicus brief but denied NACDL’s motion to participate in the oral argument.  It will be interesting to see whether any Pepperdine students participate in the argument as amicus counsel.

We noted earlier this term that CAAF was on pace to receive just 620 petitions this term.  The pace of filing since then has actually fallen slightly.  Through 11 January 2010, CAAF had received 223 petitions this term.  Extrapolate that to 365 days and you get 612. 

Here are the number of petitions filed in recent years (the annual report for last term isn’t out yet, but by my count there were 856 petitions filed last term):

 2008 Term:  836 petitions [note -- this term lasted only 11 months]

FY 2007 Term:  937 petitions

FY 2006 Term:  1006 petitions

FY 2005 Term:  779 petitions

FY 2004 Term:  802 petitions

FY 2003 Term:  694 petitions

FY 2002 Term:  974 petitions

FY 2001 Term:  926 petitions

FY 2000 Term:  753 petitions

FY 1999 Term:  1051 petitions

We’ll continue to monitor the pace of petition filings this term.