For years, the Solicitor General waived the United States’ right to respond to every military cert petition.  But that practice appears to be shifting.  On 24 August, SCOTUS granted the SG’s request for more time to respond to Army DAD’s cert petition in Huntzinger v. United States, No. 10-158.  The SG had previously sought more time to respond to a cert petition arising from a Coast Guard case – Smith v. United States, No. 10-18. I had assumed that the SG was planning to respond to Smith due to the unusually pronounced circuit split it presented and the petitioner’s unusually high-powered legal team.  But perhaps there’s also a change in standard pratice at work.

Here’s a link to the SG’s opposition to the cert petition in Neal v. United States, No. 09-1414, which deals with the new Article 120’s constitutionality.

We previously looked at Bill Cassare’s and Army DAD’s cert petition in Clayton, No. 09-1532, here.  As the SG’s office does in almost every non-capital military justice caes (Smith, No. 10-18 being an exception), the SG waived the United States’ right to respond to the cert petition.  On Thursday, the Supremes called for a response from the SG.

To refresh your recollection, here’s the QP:

WHETHER PETITIONER’S FOURTH AMENDMENT RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES WAS VIOLATED WHEN A MILITARY JUDGE FOUND PROBABLE CAUSE TO SEARCH PETITIONER’S QUARTERS DESPITE A COMPLETE ABSENCE OF EVIDENCE THAT PETITIONER HAD DOWNLOADED OR POSSESSED ANY CHILD PORNOGRAPHY AND WHERE THERE WAS NO NEXUS OF ANY TYPE BETWEEN CHILD PORNOGRAPHY AND THE LOCATION SEARCHED.

The full cert petition is available here.

Here is a link to Pvt Loving’s reply to the SG’s response to his cert petition at SCOTUS. [Update:  The link actually works now]

There was a pretty lively discussion here about whether the issue raised by the impressive Smith cert petition, No. 10-18, had actually been raised at CAAF.  We scrounged copies of the CAAF briefs in the case today and it turns out that the answer is — yes.

Here’s the QP from the Smith cert petition:

“When a trial judge’s restriction on the cross-examination of a prosecution witness is challenged on appeal as a violation of the Confrontation Clause, is the standard of review de novo, as five circuits have held, or abuse of discretion, as six other circuits (and the court of appeals here) have concluded?”

(The full cert petition is available here.)

Here’s the standard of review section of the defense’s CAAF brief:

This Court has stated that a military judge’s restriction on cross-examination is reviewed for abuse of discretion.  See United States v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006); United States v. Israel, 60 M.J. 485, 488 (C.A.A.F. 2005).  Cadet Smith respectfully submits, however, that the standard should be de novo.  Cadet Smith’s [sic] contends that the military judge violated his Sixth Amendment right to confront his accuser.  Whether that assertion is correct, i.e., what the Sixth Amendment required here, is a question of law and thus properly subject to de novo review.  That is why most other federal courts of appeals employ de novo review under similar circumstances.  See, e.g., United States v. Smith, 308 F.3d 726, 738 (7th Cir. 2002) (“Ordinarily, a district court’s evidentiary rulings are reviewed for abuse of discretion.  However, when the restriction [on cross-examination] implicates the criminal defendant’s Sixth Amendment right to confront witnesses against him, . . . the standard of review becomes de novo.” (citation omitted)). [footnote with cites to seven other circuit courts' opinions]  To be sure, the military judge’s ruling here would have to be reversed under either standard, because an error of law, such as misconstruing what the Sixth Amendment requires, always constitutes an abuse of discretion.  See, e.g., Koon v. United States, 518 U.S. 81, 100 (1996).  Cadet Smith nonetheless requests that this Court clarify that the proper standard of review for a constitutional challenge to a limit on cross-examination is de novo, and review his Sixth Amendment claim accordingly.  [footnote:  Such a clarification would not require this Court to overrule Moss and Israel.  As the Court of Criminal Appeals stated here, in each of those cases this Court deemed the limit on cross-examination to be reversible error, "weakening the claim that they represent holdings as to the standard of review to be applied."  Smith, 66 M.J. at 557 n.7, J.A. 3, n.7.]

The Government’s brief also addressed the standard of review, devoting two pages to arguing for an abuse of discretion standard.  The defense’s reply brief then devoted a page to countering the Government’s standard of review argument.

There’s no doubt that the issue raised by the cert petition’s Q.P. was pressed before and passed on by CAAF.

Army DAD has filed this amicus brief supporting certiorari in Smith v. United States, No .10-18.

Today’s SCOTUS online blog update indicates that the SG’s office has received a further extension to reply to the Neal cert petition, No. 09-1414, until 23 August.  So we’ll have to wait another couple of weeks to find out what the Office of the Solicitor General makes of the new Article 120.

We’ve been following the cert petition in Smith v. United States, No. 10–18.  We seek from the SCOTUS docket for the case that Army DAD has filed an amicus brief supporting the cert petition.  We previously noted that NACDL filed an amicus brief.  We’ll try to get a copy of Army DAD’s amicus brief and post it.

We previously noted the filing of a cert petition in Huntzinger v. United States, No. 10-158.  Here are the QPs:

CAN A MILITARY OFFICER, WHILE UNDERTAKING A CRIMINAL INVESTIGATION, AUTHORIZE AND THEN CONDUCT A SEARCH?

IS THERE AN EXCEPTION TO THE FOURTH AMENDMENT FOR THE “REASONABLE ACTIONS OF A COMMANDER CHARGED WITH MAINTAINING GOOD ORDER AND DISCIPLINE”?

We’ve posted the cert petition here.

The Loving cert petition, No. 09-989, has been distributed for the 27 September conference.