This week at SCOTUS: A cert petition was filed in Hornback v. United States, No. 13-1533, on June 23, 2014. The Solicitor General waived the right of the Government to respond three days later. In the Marine Corps case of United States v. Hornback, 73 M.J. 155 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page), CAAF found that significant prosecutorial misconduct occurred, but in a 3-2 split concluded that the error was ultimately not prejudicial, affirming the judgment of the NMCCA and the appellant’s convictions.
I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:
This week at CAAF: CAAF has finished its oral argument schedule for the September 2013 Term.
This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, July 2, 2014, at 2 p.m.:
United States v. Bram, No. 20110935
I. Due process imposes a sua sponte duty on military judges to instruct panel members on any special defenses reasonably raised by the evidence. Specification 3 of Charge II alleges that SSG Bram solicited the murder of an Afghan noncombatant. The evidence adduced at trial established that the noncombatant in question was believed to be a member of the Taliban capable of detonating an explosive device against U.S. forces. Did the military judge’s failure to instruct the panel on the special defenses of justification and mistake of fact violate SSG Bram’s right to due process?
II. Whether the evidence is legally and factually sufficient to sustain SSG Bram’s conviction for soliciting the murder of an afghan noncombatant where the evidence adduced at trial established that his intended targets were enemy combatants engaged in triggering explosive devices against U.S. forces.
This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.
This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.
This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Tuesday, July 1, 2014, at 11 a.m.:
United States v. Howard
Case summary: A panel of members with enlisted representation, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of one specification of Aggravated Sexual Assault by causing bodily harm and one specification of Adultery, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 934 (Supp. 2007). The members sentenced the appellant to reduction to pay grade E-1, total forfeiture of pay and allowances, and a dishonorable discharge. The convening authority approved the adjudged sentence and, except for the dishonorable discharge, ordered it executed.
Issue: A military judge must instruct on an affirmative defense if the record contains some evidence of the defense that the members could choose to credit. Here, relying on the victim’s testimony about her actions before, during, and after the sexual act with the appellant, the military judge found some evidence raising the affirmative defense of consent under Article 120(r), Uniform Code of Military Justice, 10 U.S.C. § 920(r) (Supp. 2007). Yet the military judge found that same evidence insufficient to raise the affirmative defense of mistake of fact as to consent under Article 120(r), UCMJ. Was this error?