Here are the three issues that the Judge Advocate General of the Navy certified to CAAF yesterday:

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?

Here’s a link to a report that the Judge Advocate General of the Navy certified NMCCA’s decision in Hutchins to CAAF on Monday.  We’ll look for that certification in today’s daily journal update.

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.”

We previously noted that Code 46 had sought an extension of the Judge Advocate General of the Navy’s deadline for certifying NMCCA’s en banc Hutchins decision, 68 M.J. 623,  to CAAF.  A friend o’ CAAFlog let us know that today CAAF granted Code 46’s motion to extend the certification period to 9 June.

Last month we discussed NMCCA’s en banc Hutchins decision providing relief due to the manner in which one of the accused’s military defense counsel withdrew from the case.  See United States v. Hutchins, 68 M.J. 623 (N-M. Ct. Crim. App. 2010) (en banc).  Yesterday the government moved for enlargement of time to file a certificate for review.

There are 16 weeks left in CAAF’s term.  So far, the court has issued 32 opinions of the court.  Judge Stucky has authored 8 opinions, Judge Erdmann 7, Judge Ryan 6, Chief Judge Effron and Judge Baker 5 each, and one opinion has been issued per curiam.

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.

CAAF’s web site has returned.  It doesn’t yet have the Jones decision and the last Daily Journal entry is from 14 April.  Presumably it will be updated tomorrow and life will return to normal.  (Maybe planes will even fly over Europe again.)

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.