Only since 1983 has the Supreme Court had statutory cert jurisdiction over CMA/CAAF decisions.  And since then, the Supremes have granted plenary review in just nine cases.  The last three (Denedo, Clinton v. Goldsmith, and Scheffer) were all cases in which the SG sought cert.  (And those are the only three instances in which the SG has sought a writ of certiorari to CMA/CAAF.)  Not since 8 November 1996 — 14 years ago — has the Supreme Court granted plenary review upon a servicemember’s petition for a writ of certiorari to CAAF.  Edmond v.  United States, 519 U.S. 977 (1996).  (There have been some other instances in which the Supreme Court granted a military cert petition, vacated CMA’s/CAAF’s ruling, and remanded the case for further consideration  in light of a newly announced SCOTUS opinion.)

The case that stands the greatest chance of breaking that 14-year losing streak is Smith v. United States, No. 10-18 — a cert petition boosted by both a pronounced circuit split and an all-star roster of counsel.  Those all stars have now filed their reply to the Solicitor General’s brief in opposition.  The reply is available here.  We’ll let you know as soon as we learn which conference the petition is distributed for.  And the Kabul Klipper will be putting bubble wrap on his shopping list.

The cert petition in Nerad v. United States, No. 10-532, has been distributed for the 23 November conference — when it will be denied unless a Justice asks for a response from the SG before then.  [Insert familiar disclosure here.]

The Supremes today announced the denial of cert in Huntzinger, No. 10-158, Contreras, No. 10-413, and Ehlers, No. 10-390.

Here’s a link to the SG’s brief in opposition to the cert petition in Smith v. United States, No. 10-18.  Interestingly, the SG argues that there is “no conflict among the circuits that warrants further review of petitioner’s case.”  Smtih BIO at 10.  The SG continues, “This Court has recently denied certiorari on the question presented, Larson v. United States, 552 U.S. 1260 (2008), and should do so again here.”  Id.; see also id. at 14-18.

Here’s the QP from the 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?

And here’s the QP as presented by the SG:

Whether the United States Court of Appeals for the Armed Forces applied the correct standard of review to petitioner’s claim that the military judge’s limitation on the cross-examination of a government witness violated the Confrontation Clause of the Sixth Amendment.

The Supreme Court has docketed the cert petition in Nerad v. United States, No. 10-532.  A pdf of the cert petition as filed — which cleaned up some typos in the earlier posted version — is here.

Here’s a link to a cert petition in Nerad v. United States that will be filed shortly.  It seeks review of CAAF’s decision at 69 MJ 138.  [Disclosure:  I'm counsel for the petitioner.]

The Army cert petition in Huntzinger v. United States, No. 10-158, has been distributed for the 29 October conference. 

Here are the QPs from the cert petition:

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”?

And here are the QPs from the SG’s brief in opposition:

Whether the commander’s authorization of the search and seizure of petitioner’s computer and hard drive violated Military Rule of Evidence 315(d) and the Fourth Amendment.

The cert petition in Ehlers v. United States, No. 10-390, has also been distributed for the 29 October conference.  As we previously noted, the Supremes don’t actually have cert jurisdiction in the Ehlers case, since CAAF denied the petition for grant of review.  The SG simply waived the United States’ right to respond to the cert petition.

The cert petition in Contreras v. United States, No. 10-413, has also been distributed for the 29 October conference.  The SG also waived the right to respond in that case (cert jurisdiction clearly exists in Contreras).  Here’s the QP from Contreras:

Is a violation of Article 134, Uniform Code of Military Justice, the General Article, which prohibits, among other things, conduct “to the prejudice of good order and discipline in the armed forces” or “of a nature to bring discredit upon the armed forces,” a “purely military offense?”

The SG has filed this brief in opposition to the cert petition in Clayton v. United States, No. 09-1532.

Here’s the QP from the cert petition:

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.

And here’s the QP from the brief in opposition:  “Whether probable cause existed to search petitioner’s
military quarters in Kuwait for evidence of child pornography.”  The full cert petition is available here.

Here’s a link to the SG’s brief in opposition in Huntzinger v. United States, No. 10-158.

The SG filed a brief in opposition to the Huntzinger cert petition last Wednesday, but it isn’t up yet on the SG’s website.  If anyone has a copy, please e-mail it to us at caaflog@caaflog.com. 

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”?

The complete cert petition is available here.

Here’s the QP from the Contreras cert petition, No. 10-413 :

Is a violation of Article 134, Uniform Code of Military Justice, the General Article, which prohibits, among other things, conduct “to the prejudice of good order and discipline in the armed forces” or “of a nature to bring discredit upon the armed forces,” a “purely military offense?”

The complete cert petition is available here.

On Friday, the Supremes docketed a cert petition in Contreras v.  United States, No. 10-413.  CAAF’s decision in the case is published at 69 M.J. 120.  I’ll try to get a copy of the cert petition and post it tomorrow.

A copy of the Ehlers cert petition is available here.

A new military cert petition now shows up on the Supremes’ docket:  Ehlers v. United States, No. 10-390.  It’s odd, though.  The Supremes don’t appear to actually have cert jurisdiction over the case.  CAAF denied Sgt Ehlers’ petition for review on 23 April.  69 M.J. 89.  CAAF then denied Sgt Ehlers’ reconsideration petition on 23 June 2010.  69 M.J. 190.  That equals no cert jurisdiction.

Sgt Ehlers is represented both on appeal and for cert purposes by a civilian counsel–Michael D.J. Eisenberg.  I’ll try to get a copy of the cert petition.

Here’s a link to NMCCA’s unpublished opinion in the case.

Here’s a link to the petitioner’s reply to the SG’s opposition to the cert petition in Neal v. United States, No. 09-1414, a new Article 120 case.  The reply was filed on Tuesday.

The Neal cert petition has been distributed for the 27 September conference.