Oorah!

Sixteen cases are set for argument between 27 September and 1 December.  Eight of those are Air Force cases, five are Naval cases, and the remaining three are Army cases.

Two other non-trailer cases have been granted, one from the Air Force (Beaty) and one from the Army (Soto).  There are also two certified issues (Rose and Humphries), both from the Air Force, for which argument hasn’t been scheduled.

What will next term look like?  Based on current trends, it appears that the number of opinions of the court could be even smaller.

On Bastille Day, I noted my sense that CAAF’s number of grants was running ahead of a similar point last year.  I was wrong.  That’s why we crunch numbers rather than relying on our general sense of things.

I believe that CAAF currently has 20 cases that will likely be argued during its coming term — 17 cases with granted or specified issues and 3 caess with certified issues.  (I exclude cases that appear to be trailer cases that will likely be summarily disposed of in light of the outcome of some other case.)  Those 20 cases are:  Blazier, Alston, Medina, Jones, Staton, White, Luke, Gooch, Savard, Flores, Prather, Stefan, Pope, Hutchins (certified issue), Watson, Savala, Rose (certified issue), Beaty, Soto, and Humphries (certified issue).  If I left any out, please let me know.  You can post a note below or e-mail me at caaflog@caaflog.com.

At this point last term, there were 23 cases with granted or specified issues and 3 cases with certified issues in a similar posture.  So the number of cases in the chute for next term (20) looks like it’s 6 smaller than the number of cases in the chute at a similar point last term (26).  But obviously there’s plenty of time for CAAF to pull even with or ahead of last year’s pace. 

Last term, CAAF issued 46 opinions of the court.  The previous five terms, it issued 65, 55, 76, 64, and 57.  It appears unlikely that CAAF will return to those levels next term.  Rather, the court seems more likely to fall near the 43-46 range set this term and last.

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING APPELLEE’S SENTENCE INAPPROPRIATELY SEVERE UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE AND ERRED IN AN ATTEMPT AT EXERCISING APPELLATE CLEMENCY BY REMANDING THE CASE TO THE CONVENING AUTHORITY WITH INSTRUCTIONS THAT THE CONVENING AUTHORITY MAY APPROVE AN ADJUDGED SENTENCE NO GREATER THAN A SUSPENDED BAD CONDUCT DISCHARGE AND A REDUCTION TO THE GRADE OF E-1.

United States v. Humphries, __ M.J. __, No. 10-____ (C.A.A.F. July 14, 2010).  AFCCA’s unpublished decision in the case is available here.  (On 25 June, AFCCA denied the government’s motion for reconsideration en banc.)

This is the second time that a Judge Advocate General of the Air Force has certified the Rose case to CAAF.  When it first considered the case, the Air Force Court reversed the findings of guilty that would require the accused to register as a sex offender on IAC grounds arising from the civilian defense counsel’s faulty response to AB Rose’s questions about whether he’d have to register as a sex offender if he pleaded guilty to the indecent assault charges he faced.  United States v. Rose, 67 M.J. 630 (A.F. Ct. Crim. App. 2009).  The Judge Advocate General of the Air Force certified the case to CAAF, which reversed due to the Air Force Court’s failure to compel an affidavit from AB Rose’s former military defense counsel addressing the IAC claim.  United States v. Rose, 68 M.J. 235 (C.A.A.F. 2009) (summary disposition).  After that affidavit was produced (which said the previous counsel didn’t remember anything), the Air Force Court, sitting en banc, reached the same outcome as in the original case, this time in a 3-2 unpublished decision available here.  United States v. Rose, No. 36508 (f rev) (A.F. Ct. Crim. App. June 11, 2010) (en banc).

[Disclosure:  while I didn't represent AB Rose in any of his previous appeals, I'm representing him for purposes of the certified issue.]

CAAF will hear reargument in Blazier on 27 September.

NIMJ in US v. Blazier - Crawford/Melendez-Diaz Confrontation Clause issues.

NIMJ in US v. Medina - constitutionality of Art. 120(c)(2), UCMJ and the affirmative defense of  consent.

NACDL in US v. Blazier(UPDATED) – Crawford/Melendez-Diaz Confrontation Clause issues.

Oral argument was requested and denied in all three instances.

1.  United States v. Nerad, No. 09-5006/AF: 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN NULLIFYING APPELLEE’S FACTUALLY AND LEGALLY SUFFICIENT CONVICTION FOR POSSESSION OF CHILD PORNOGRAPHY.”  [Certified issue]

2.  United States v. Diaz, No. 09-0535/NA:

I.   WHETHER THE LOWER COURTS MISREAD THE SCIENTER AND NATIONAL SECURITY ELEMENTS OF THE ESPIONAGE ACT.

II.  WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN REJECTING AS IRREGULAR APPELLANT’S PROFFERED GUILTY PLEA TO A VIOLATION OF ARTICLE 133.

III. WHETHER THE EVIDENCE OF THE CIRCUMSTANCES UNDER WHICH AN ACCUSED ACTED, INCLUDING HIS MOTIVE, IS RELEVANT TO A CHARGE UNDER ARTICLE 133.

3.  United States v. Lloyd, No. 09-0775/AF:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION WHEN SHE DENIED THE DEFENSE REQUEST FOR AN EXPERT CONSULTANT IN THE FIELD OF BLOOD SPATTER.

4.  United States v. Contreras, No. 09-0754/AF: 

WHETHER THE HOUSEBREAKING CHARGE SHOULD BE SET ASIDE BECAUSE THE UNDERLYING CRIMINAL OFFENSE, INDECENT ACTS WITH ANOTHER UNDER ARTICLE 134, UCMJ, IS A PURELY MILITARY OFFENSE.

5.  United States v. Mullins, No. 07-0401/NA:

WHETHER THE LOWER COURT ERRED IN HOLDING THAT THERE WAS NOTHING IMPERMISSIBLE IN THE MILITARY JUDGE ALLOWING THE GOVERNMENT TO INTRODUCE LIE DETECTOR TESTIMONY IN VIOLATION OF MILITARY RULE OF EVIDENCE 702.

WHETHER THE LOWER COURT DENIED APPELLANT DUE PROCESS WHEN IT DENIED HIM RELIEF DUE TO EXCESSIVE POST-TRIAL PROCESSING DELAY AND DENIED HIS SUPPLEMENTAL ASSIGNMENTS OF ERROR.

6.  United States v. Graner, No. 09-0432/AR:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE ACCUSED BY FAILING TO ORDER DISCLOSURE OF MEMOS THAT SET OUT APPROVED “ENHANCED INTERROGATION TACTICS” FOR HANDLING DETAINEES IN UNITED STATES CUSTODY. 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION AND COMMITTED PREJUDICIAL ERROR BY EXCLUDING THE TESTIMONY OF MAJOR PONCE; THE E-MAIL AUTHORED BY MAJOR PONCE (DEF EX G FOR ID); AND THE FAVORABLE DEFENSE EXPERT TESTIMONY BY MR. THOMAS J. ARCHAMBAULT. 

I.  Whether the Navy-Marine Corps Court of Criminal Appeals erred in finding, inter alia, that the military judge severed the attorney-client relationship with Captain Bass?

II.  Whether under R.C.M. 505(d)(2)(B), the Navy-Marine Corps Court incorrectly found no “good cause” on the record for the replacement of Appellant’s second detailed defense counsel with another counsel?

III.  Whether the lower court applied the wrong standard and erroneously presumed, without assessing, prejudice and set aside the findings and sentence, where Appellant’s statutory rights, and constitutional right to effective assistance of counsel, were satisfied throughout trial?

The Assistant Judge Advocate General for Military Justice, Colonel Pete Collins, reportedly advised the Judge Advocate General against certifying the case to CAAF, noting that a certification ”is unlikely to result in a positive result for the government.”  The article continues, “”The attorney’s conduct in this case was not in the best interest of the client,” Collins said in his written opinion. “The military judge failed to consider the issue. The facts are that the client lost a member of his defense team three weeks before his murder trial with no warning and no turnover to the substitute counsel.”

Eleven of the cases that have been orally argued remain undecided.  And there’s a possibility that the court will issue a second Blazier opinion this term.  Also, 2 of the 32 opinions issued thus far were decided without oral argument.  It’s possible that CAAF will issue more such opinions this term.  But given the length of time remaining in the term and the small number of cases that have been argued but not decided, it seems unlikely that there will be an end-of-term dump this year.

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

(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.

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.”

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).