Next week at the Supremes:  There are no anticipated military justice developments at the Supremes on my radar screen for next week.

Next week at CAAF:  CAAF has completed its oral arguments for the term.  One argued case remains undecided:  United States v. Nerad, No. 09-5006/AF.

Next week at the CCAs:  On Thursday, NMCCA will hear oral argument in United States v. McMurrin.  Here are the issues being argued:

I. WHETHER APPELLANT’S CONVICTION FOR NEGLIGENT HOMICIDE UNDER ARTICLE 134, UCMJ, 10 U.S.C. § 934 (2006), AS A LESSER INCLUDED OFFENSE OF INVOLUNTARY MANSLAUGHTER UNDER ARTICLE 119, UCMJ, VIOLATES THE REQUIREMENTS OF DUE PROCESS AND ARTICLE 79, UCMJ.  See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010), United States v. Burleson, __ M.J. __, No. 09-258/NA (C.A.A.F. 18 May 2010). See also United States v. Riley, 58 M.J. 305, 311-12 (C.A.A.F. 2003), United States v. Martinez, 42 M.J. 327, 330 (C.A.A.F. 1995).

II. WHETHER THE APPELLANT’S ACTS OR OMISSIONS: (1) AMOUNTED TO SIMPLE NEGLIGENCE, AND (2) PLAYED A MATERIAL ROLE IN MMFR STEPHENS’ DEATH.

(Someone in the Navy help me out with this one.  Is an “MMFR” a Machinist’s Mate Fireman Recruit?)

This week at CAAF:  CAAF has completed its oral arguments for the term.  Only one argued case remains undecided — United States v. Nerad, No. 09-5006/AF.

This week at the CCAs:  None of the CCA web sites lists an argument for this week.

This week at CAAF:  CAAF has completed oral arguments for the Term.  Two argued cases remain undecided:   Nerad, No. 09-5006/AF, and Diaz, No. 09-0535/NA.

This week at the CCAs:  None of the CCA dockets lists an oral argument for this week.

This week at CAAFlog:  I’ll be on the road Wednesday through Friday, so my blogging frequency will be diminished this week.

This week at CAAF:  CAAF has completed its oral arguments for the term.  Two argued cases remain undecided:  Nerad, No. 09-5006/AF, and Diaz, No. 09-0535/NA.

This week at the CCAs:  On Thursday, NMCCA will hear oral argument in United States v. Soucie on these two issues:

I. WHETHER THE TERM “OFFICIAL OF A CERTAIN GOVERNMENT” IN ARTICLE 134, UCMJ, INCLUDES EMPLOYEES, AND IF IT DOES INCLUDE EMPLOYEES, WHETHER THE APPELLANT’S CONDUCT CONSTITUTES IMPERSONATION.

II. WHETHER THE MILITARY JUDGE ERRED IN ACCEPTING THE APPELLANT’S GUILTY PLEA WITHOUT INQUIRING INTO THE PROSPECTIVE DEFENSE OF DURESS, WHICH MAY HAVE BEEN RAISED WHEN THE APPELLANT STATED DURING PROVIDENCY: “I FOUND OUT [MY GIRLFRIEND] WAS PREGNANT AND SHE WAS THREATENING TO GET RID OF THE BABY IF I DIDN’T PURCHASE THIS HOUSE FOR HER.”

This week at CAAF:  CAAF has completed its oral argument schedule for the term.  Four argued  cases remain undecided:  Nerad, Diaz, Contreras, and Mullins.

This week at the CCAs:  ACCA — which is by far the CCA that hears the most oral arguments — is the only CCA whose web site lists an oral argument for this week.  On Wednesday, ACCA will hear oral argument in United States v. Vargaspuentas, No. ARMY 20091096, on these three interesting issues:

I.  WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL INFORMED HIM HIS GUILTY PLEA MIGHT RESULT IN DEPORTATION.

II.  WHETHER COUNSEL’S ADVICE REGARDING DEPORTATION WAS INEFFECTIVE. SEE PADILLA V. KENTUCKY, 08-651 (2010); STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984); HILL V. LOCKHART, 474 U.S. 52 (1985).

III.  IF APPELLANT’S COUNSEL WAS INEFFECTIVE, WHAT RELIEF, IF ANY, IS APPROPRIATE.

This week at CAAF:  CAAF has completed oral arguments for the year.  Six argued cases remain undecided:  Nerad, Diaz, Lloyd, Contreras, Mullins, and Graner. 

This week at the CCAs:  None of the CCAs’ calendars lists an oral argument for this week.

This week at the Supremes:  Tomorrow’s big military justice news won’t originate from a military justice case, though it could have a big impact on the military justice system.  Tomorrow’s SCOUTS order list will probably include the grant or denial of cert in Pendergrass v. Indiana, No. 09-866, which deals with the permissibility of surrogate expert testimony under Melendez-Diaz.  SCOTUS’s docket for the case, available here, indicates that Pendergrass’s counsel filed a letter with the Court the day before the case went to conference.  Does anyone know the content of that letter?  Tomorrow’s order list will almost certainly also include the denial of cert in the pro se IFP military cert petition in Taylor v. United States, No. 09-10418.  The Army cert petitition in Miller v. United States, No. 09-1408, has been distributed for Thursday’s conference.

This week at CAAF:  CAAF has completed oral arguments for the term.  Six argued cases remain undecided:  Nerad, Diaz, Lloyd, Contreras, Mullins, and Graner.  It’s still unclear whether CAAF will issue an opinion in Blazier II this term or hold it over until next term, possibly ordering a reargument in the fall.

This week at the CCAs:  ACCA, which hears far more oral arguments than the rest of the CCAs combined, will hear a false confession expert case on Thursday.  The issue in United States v. McGinnis, No. ARMY 20071207, is:  “WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN FAILING TO GRANT THE DEFENSE REQUEST TO APPOINT AN EXPERT ASSISTANT, WHICH INCLUDED BUT WAS NOT LIMITED TO EXPERT TESTIMONY, IN THE AREA OF COERCIVE LAW ENFORCEMENT INTERROGATION TECHNIQUES WHICH MAY LEAD TO A FALSE CONFESSION.

This week at CAAF:  CAAF has completed its scheduled oral arguments for the term.  Nine argued cases remain undecided.

This week at the CCAs:  ACCA will hear two oral arguments on Thursday.  Thursday morning, ACCA will hear oral argument on the following issue in United States v. Horne, No. ARMY 20090892:  “WHETHER THE ACTING COMMANDER, FORT LEWIS, HAS ANY UCMJ AUTHORITY DESIGNATED BY THE SECRETARY OF THE ARMY, AND WHETHER HE HAD JURISDICTION IN APPELLANT’S CASE.”  On Thursday afternoon, ACCA will hear oral argument in United States v. White, No. ARMY 20061313:  “WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL DEFENSE COUNSEL PROVIDED INCOMPETENT ADVICE REGARDING THE DISCOVERABILITY OF APPELLANT’S STATEMENTS TO HIS PSYCHOLOGIST AND CONDUCTED AN INADEQUATE INTERVIEW OF THE PSYCHOLOGIST BEFORE CALLING HIM TO THE STAND.”

This week in Article 32 investigations:  On Friday, an Article 32 investigation hearing will be held at Walter Reed Army Medical Center in the case of United States v. LTC Terrence L. Lakin.  Unfortunately I’ll be on the road on Friday; otherwise, I probably would have taken a vacation day and headed over to Walter Reed.

This week at CAAF:  CAAF has completed its oral arguments for the term.  Nine argued cases remain undecided.

This week at the CCAs:  On Wednesday, NMCCA will hear oral argument in United States v. Sagona on this issue: “WHETHER THE GOVERNMENT OR THE APPELLANT BEARS THE BURDEN OF PRODUCING THE AGREEMENT CENTRAL TO THE APPELLANT’S DE FACTO IMMUNITY CLAIM, AND, IF THE GOVERNMENT BEARS THIS BURDEN, WHETHER THE LOSS OF THIS DOCUMENT CONSTITUTES A DUE-PROCESS VIOLATION.”  Also on Wednesday, ACCA will hear oral argument in United States v. Shanks, No. ARMY 20090289, on this issue:  “WHETHER DEATH IS AN IMPERMISSIBLE PUNISHMENT FOR RAPE OF A CHILD UNDER THE EIGHTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, AND AS SUCH RAPE CARRIED WITH IT A STATUTE OF LIMITATION OF 5 YEARS, AND THEREFORE SPECIFICATION 1 OF CHARGE I MUST BE SET ASIDE.”

This week in Article 32 investigations:  According to Phil Cave’s Court-Martial Trial Practice blog, the Article 32 investigation in MAJ Hasan’s case is scheduled for 1 June.

This week at CAAF:  CAAF has concluded oral arguments for the term.  Ten argued cases remain undecided.

This week at the CCAs:  On Tuesday, ACCA will hear oral argument in United States v. Campell, No. ARMY 20081091, on these issues:

I.  WHETHER THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION OF MALTREATMENT UNDER ARTICLE 93, UCMJ, FOR SPECIFICATIONS 1, 2, 3, 4, 6, AND 7 OF CHARGE I.

II.  WHETHER ARTICLE 93, AS APPLIED TO APPELLANT, IS UNCONSTITUTIONAL. SEE, PARKER V. LEVY, 471 U.S. 733 (1974).

This week at CAAF:  CAAF has finished oral arguments for the term.  Ten argued cases remain undecided.  The annual end o’ oral argument season reception at CAAF is on Wednesday.

This week at the CCAs: Tomorrow at 1000, NMCCA will hold oral argument in Foisy on this issue: “WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DID NOT ALLOW THE DEFENSE TO INTRODUCE INTO EVIDENCE THE INITIAL NCIS STATEMENT MADE BY PFC FOISY AFTER THE GOVERNMENT HAD ALREADY ADMITTED PFC FOISY’S SUPPLEMENTAL NCIS STATEMENT.” On Tuesday at 1000, AFCCA will hear oral argument in United States v. Harden, No. ACM 37388, on these two assignments of error:

I.  The military judge erred by denying the motion to suppress Appellant’s pretrial statements

II.  The military judge erred by excluding defense evidence concerning the state of mind of the Appellant immediately following the interrogation which was relevant to evaluating the reliability and weight of the
pretrial statement.

This week at CAAF:  CAAF has concluded oral arguments for the term.

This week at the CCAs:  On Wednesday, ACCA will hear oral argument in United States v. Steele, No. 20071177.  Here are the three assignments of error being argued:

I.  THE EVIDENCE ON THE MENS REA ELEMENTS OF CHARGE II AND ITS SPECIFICATION IS NOT SUFFICIENT TO SUPPORT APPELLANT’S CONVICTION.

II.  THE EVIDENCE IS INSUFFICIENT ON CHARGE III AND ITS SPECIFICATION TO PROVE CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN.

III.  BECAUSE APPELLANT WAS NOT ON FAIR NOTICE THAT HIS CONDUCT WAS CRIMINAL, HIS CONVICTION UNDER CHARGE III OF CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN VIOLATES THE DUE PROCESS CLAUSE OF U.S. CONST. AMEND. V.

That third issue sounds curiously like Parker v. Levy.

This week at CAAF:  CAAF will hear its final oral argument of the term tomorrow.  The argument is in the Abu Ghraib case of United States v. Graner, No. 09-0432/AR.  The granted issues are:

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.

This week at the CCAs:  On Thursday, ACCA will hear oral argument in United States v. Hollace, No. ARMY 20080083, on this assignment of error:

APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE DEFENSE COUNSEL WAS PREJUDICIALLY DEFICIENT BY: (1) FAILING TO MAKE A MOTION TO SUPPRESS APPELLANT’S SWORN STATEMENT TO CID; (2) FAILING TO FULLY INVESTIGATE THE CASE; AND (3) FAILING TO PRESENT A SENTENCING CASE.

This week at the court-martial trial level:   Tomorrow an Article 39(a) session is scheduled at Norfolk in the third and final SEAL case, United States v. McCabe.  Trial on the merits is expected to start on Tuesday.

This week at CAAF:  CAAF doesn’t have any oral arguments scheduled this week.  There’s just one scheduled oral argument remaining this term — Graner, one of the Abu Ghraib cases, on 3 May.

This week at the CCAs:  None of the CCA online dockets lists an oral argument for this week.

WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING APPELLANT’S CONVICTION FOR ATTEMPTING TO ENTICE A MINOR TO ENGAGE IN ILLEGAL SEXUAL ACTIVITY, IN VIOLATION OF 18 U.S.C. SECTION 2422(b), WHERE THE RECORD OF TRIAL FAILED TO SHOW THAT APPELLANT TOOK THE “SUBSTANTIAL STEP” NECESSARY FOR AN ATTEMPT CONVICTION UNDER THE STATUTE.

This week at CAAF:  CAAF’s web site is down–off-line since Wednesday due to either problems with a server at the Air Force JAG School or a volcano in Iceland.  The unavailability of CAAF’s web site prevents me from accessing its oral argument calendar.  My vague recollection is that CAAF is hearing three oral arguments this week.

This week at the CCAs:  On Thursday, ACCA will hear oral argument in United States v. Gaskins, No. ARMY 2008132, on these issues: 

I.  WHETHER THE EVIDENCE IS LEGALLY AND FACTUALLY SUFFICIENT TO SUPPORT A FINDING THAT APPELLANT COMMITTED ANY OF THE ACTS FOR WHICH HE STANDS CONVICTED.

II.  WHETHER THE CONVENING AUTHORITY ERRED BY APPROVING THE ADJUDGED SENTENCE INASMUCH AS THERE IS NO VERBATIM RECORD OF TRIAL IN THIS CASE BECAUSE THE GOVERNMENT LOST THE DEFENSE SENTENCING EVIDENCE AND AS SUCH, WHETHER NO PUNISHMENT GREATER THAN THAT AVAILABLE AT A SPECIAL COURT-MARTIAL MAY BE APPROVED.

The Air Force Court’s web site is down, so I’m not sure whether that court will be hearing any oral arguments this week.

This week at the trial-level:  We understand that the court-martial of United States v. SO2 Keefe is scheduled for tomorrow in Iraq.  The court-martial of United States v. SO1 Huertas will be held after the conclusion of the Keefe case.

This week at CAAF:  CAAF isn’t hearing oral arguments this week.  Arguments resume next week.

This week at the CCAs:  None of the CCAs’ web sites lists an oral argument for this week.

This week at the trial level:  Sentencing deliberations are expected early this week in the capital court-martial of United States v. Hennis.

This week at CAAF:  This week will see the return of oral arguments to E Street, with three arguments on the bill–and all three are Air Force cases.  On Tuesday, CAAF will first hear oral argument in United States v. Lloyd, No. 09-0755AF, where the granted issue is “WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION WHEN SHE DENIED THE DEFENSE REQUEST FOR AN EXPERT CONSULTANT IN THE FIELD OF BLOOD SPATTER.”  AFCCA’s unpublished decision in the case is available here.  Tuesday’s second case is United States v. Ayala, No. 10-0013/AF, where the granted issue is:  “WHETHER THE MILITARY JUDGE ERRED IN FINDING APPELLANT’S ADDITIONAL URINALYSES CONDUCTED PURSUANT TO UNITED STATES v. BICKEL, 30 M.J. 277 (C.M.A. 1990), WERE FOR A PERMISSIBLE PURPOSE.”  AFCCA’s unpublished decision in the case is available here.  Wednesday’s argument is in United States v. Contreras, No. 09-0754/AF, where the granted issue is: “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.”  AFCCA’s unpublished decision in the case is available here.

This week at the CCAs:  On Tuesday, NMCCA will hear oral argument in United States v. Phillips on this issue:  ”WHETHER THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUSTAIN THE APPELLANT’S CONVICTION FOR THE SOLE SPECIFICATION OF VIOLATING ART. 134, UCMJ, WHERE THE GOVERNMENT FAILED TO PRESENT ANY EVIDENCE THAT THE APPELLANT’S CONDUCT WAS PREJUDICIAL TO GOOD ORDER AND DISCIPLINE AND SERVICE DISCREDITING.”

On Thursday, ACCA will hear oral argument in United States v. Dear, No. ARMY 20080786, on these assignments of error:

I.  THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE PANEL ON THE DISTINCT OFFENSE OF INDECENT ACTS, WHICH IS NOT A LESSER-INCLUDED OFFENSE OF RAPE.

II.  THERE WAS A MATERIAL FATAL VARIANCE BETWEEN THE SPECIFICATION AND THE FINDINGS WHICH DENIED APPELLANT THE ABILITY TO DEFEND HIMSELF AGAINST THE NEW CHARGE

This week at the trial court level:  The capital court-martial of United States v. Hennis will continue at Fort Bragg.  The defense is currently presenting its case-in-chief.  According to this Fayetteville Observer report, the trial will resume on Tuesday at 0900, when the defense may present one additional witness followed by the prosecution’s case in rebuttal.

This week at CAAF:  CAAF has no oral arguments this week.  Arguments resume on 6 April.

This week at the CCAs:  On Tuesday, ACCA will hear oral argument in United States v. Gaddis, No. ARMY 20080150.  The assignments of error to be argued are:

I THE MILITARY JUDGE COMMITTED PLAIN ERROR BY DENYING THE APPELLANT THE OPPORTUNITY TO PRESENT EVIDENCE THAT HIS ACCUSER HAD A MOTIVE TO FABRICATE THE ALLEGATIONS AGAINST APPELLANT BECAUSE THE ACCUSER WAS AFRAID THAT HER MOTHER WOULD BE ANGRY ABOUT THE ACCUSER’S SEXUAL ACTIVITY WITH PERSONS OTHER THAN APPELLANT.

II APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE CIVILIAN DEFENSE COUNSEL WAS PREJUDICIALLY DEFICIENT IN LITIGATING THE MILITARY RULE OF EVIDENCE 412 MOTION, AND PRESENTING APPELLANT’S CASE IN CHIEF.

III APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL WHEN THE MILITARY JUDGE EXCLUDED THE PUBLIC FROM THE COURT ROOM WHEN APPELLANT TESTIFIED IN SUPPORT OF, AND COUNSEL ARGUED FOR, ADMISSION OF THE EVIDENCE PERTAINING TO THE ACCUSER’S PRIOR SEXUAL CONDUCT.

IV  APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHERE THE MILITARY JUDGE FAILED TO CONDUCT THE TRIAL IN AN IMPARTIAL MANNER AND ACTED WITH IMPROPRIETY TOWARD APPELLANT’S CIVILIAN DEFENSE COUNSEL.

V  THE CUMULATIVE EFFECT OF THE ERRORS DISCUSSED ABOVE DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

This week at the court-martial trial level:  The capital court-martial of United States v. Hennis continues at Fort Bragg.  Does anyone know when proceedings in the any of the SEALs cases are set to resume?

Blogging is addictive. You can watch readers post comments on your blog, reacting to a new post within minutes of its publication. Google Analytics gives nearly instantaneous feedback on the broader results of your work. If you publish a post that attracts attention, you see an immediate surge in traffic to your blog.  . . . The immediacy of reactions on the Web, and your ability to monitor and influence those reactions in real time, can become addictive. . . . People with compulsive personalities should not launch blogs.

Amen.

This week at CAAF:  CAAF has no oral arguments scheduled this week.  Oral arguments resume on 6 April.

This week at the CCAs:  ACCA will hear two oral arguments this week.  United States v. Martinez, No. ARMY 20080699, is slated for Wednesday.  The intriguing issues to be argued in Martinez are:

I.  WHETHER A REASONABLE PERSON WOULD QUESTION THE TRIAL JUDGE’S IMPARTIALITY WHEN A SENIOR MILITARY JUDGE, WHO APPEARED TO HAVE ASSISTED THE GOVERNMENT DURING TRIAL, ENTERED THE TRIAL JUDGE’S CHAMBERS DURING RECESSES AND DELIBERATIONS, IN VIOLATION OF APPELLANT’S RIGHT TO DUE PROCESS.

II.  THE OMISSION OF ANY REFERENCE TO THE SENIOR MILITARY JUDGE WHO APPEARED TO HAVE ASSISTED THE GOVERNMENT DURING TRIAL AND ENTERED THE TRIAL JUDGE’S CHAMBERS DURING RECESSES AND DELIBERATIONS MADE THIS RECORD OF TRIAL SUBSTANTIALLY INCOMPLETE IN CONTRAVENTION OF 54(c), UCMJ, AND RULE FOR COURTS-MARTIAL 1103(b)(2)(B), AND WAS A SUBSTANTIAL ERROR.

III.  WHETHER THE OFFENSE OF INCAPACITATION FOR DUTY IS NECESSARILY INCLUDED IN OR CLOSELY RELATED TO THE OFFENSE OF DRUNK ON STATION, AND WHETHER THIS COURT MAY AFFIRM THE FINDING OF INCAPACITATION FOR DUTY ON EITHER OF THOSE THEORIES? SEE UNITED STATES v. MILLER, 67 M.J. 385 (C.A.A.F. 2009), BUT SEE UNITED STATES v. HOSKINS, 29 M.J. 402 (C.M.A. 1990).

IV.  WHETHER IT WAS PERMISSIBLE FOR THE CONVENING AUTHORITY TO APPROVE A FINDING OF INCAPACITATION FOR DUTY IN LIGHT OF RULE FOR COURTS-MARTIAL 1107(C).

On Thursday, ACCA will hear oral argument in United States v. Lewis, No. ARMY 20061070.  The assignment of error to be argued in Lewis is:  “THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SUSTAIN THE CONVICTIONS.”

This week at the court-martial trial level:  As reported here by the Meridian Record-Journal, General James Mattis–the Commander of U.S. Joint Forces Command–will testify tomorrow at an Article 39(a) session in United States v. Wuterich.  General Mattis’s testimony concerns an unlawful command influence motion pending in Wuterich. As we have previously discussed, in 2008 a military judge granted a UCI motion in the related court-martial case of United States v. Chessani, and last year NMCCA upheld that ruling upon the government’s Article 62 appeal. See United States v. Chessani, No. NMCCA 200800299 (N-M. Ct. Crim. App. March 17, 2009).  [Familiar disclosure:  I was one of SSgt Wuterich's appellate defense counsel during previous Article 62 appeals in the case.]

This week at CAAF:  CAAF has no oral arguments scheduled this week.

This week at the CCAs:  NMCCA will hear oral argument in two cases this week.  The issues in United States v. Hutchins, to be orally argued before an en banc court tomorrow, are:

I. WHETHER THE ABSENCE OF CAPTAIN BASS, USMC, AT TRIAL RESULTED FROM:

     A. HIS EXCUSAL WITH THE APPELLANT’S EXPRESS CONSENT,

     B. HIS APPLICATION FOR WITHDRAWAL RULED UPON BY THE MILITARY JUDGE FOR GOOD CAUSE SHOWN,

     C. OTHER GOOD CAUSE SHOWN ON THE RECORD, OR

     D. SOME OTHER MECHANISM TO INCLUDE, BUT NOT LIMITED TO, IMPROPER/IRREGULAR WITHDRAWAL OF COUNSEL (See United States v. Acton, 38 M.J. 330, 337 (C.M.A. 1995)), OR INEFFECTIVE ASSISTANCE OF COUNSEL?

II. IF CAPT BASS’ ABSENCE FROM TRIAL STEMMED FROM OR THROUGH SOME MECHANISM OTHER THAN (A) – (C) ABOVE, MAY THIS COURT TEST THE RAMIFICATIONS OF HIS ABSENCE FOR PREJUDICE? IF SO, HOW?

The issues to be argued in United States v. Warner on Wednesday are:

I. WHETHER APPELLANT’S CONVICTION TO ATTEMPTED MURDER IS FACTUALLY AND LEGALLY INSUFFICIENT DUE TO THE ALLEGED OVERT ACTS BEING MERELY PREPATORY IN NATURE AND NOT SUBSTANTIAL STEPS TOWARD COMMISSION OF THE OFFENSE.

III. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY PERMITTING IMPERMISSIBLE MRE 404(b) PROPENSITY EVIDENCE TO BE PRESENTED TO THE MEMBERS.

On Tuesday, ACCA will hear oral argument in United States v. Johnson, No. 20081165, where the issue is:

WHETHER THERE IS A SUBSTANTIAL BASIS IN LAW AND FACT TO QUESTION APPELLANT’S PLEA TO POSSESSION OF CHILD PORNOGRAPHY IN VIOLATION OF 18 U.S.C. § 2252A(a)(5)(B) WHERE DURING APPELLANT’S GUILTY PLEA (1) THE MILITARY JUDGE ADVISED APPELLANT OF AND ENGAGED IN A COLLOQUY WITH APPELLANT CONCERNING THE ELEMENTS FOR 18 U.S.C. 2252A(a)(5)(A); (2) APPELLANT AFFIRMATIVELY DISCLAIMED HIS CONDUCT AS PREJUDICIAL TO GOOD ORDER AND DISCIPLINE UNDER CLAUSE 1, ARTICLE 134, UCMJ; AND (3) THE ONLY FACTUAL PREDICATE FOR CLAUSE 2, ARTICLE 134, UCMJ IS APPELLANT’S STATEMENT THAT HIS CONDUCT WAS SERVICE-DISCREDITING BECAUSE “IT PUTS A BAD LIGHT ON EVERYBODY IN MY UNIT, YOUR HONOR.”

This week at CAAFlog:  I’m hitting the road tomorrow and will have very limited access to the Internet until Saturday.  So expect to hear nothing from me but a whole lot from my CAAFlog colleagues this week.

II.  THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT A FINDING THAT APPELLANT COMMITTED ANY OF THE ACTS FOR WHICH HE STANDS CONVICTED

III.  THE MILITARY JUDGE COMMITTED LEGAL ERROR WHEN SHE IMPROPERLY ADMITTED THE ONLY EVIDENCE PURPORTEDLY TYING APPELLANT TO THE SCENE OF THE CRIME

This week at the Supremes:  I’m not aware of any anticipated military justice developments at the Supremes this week, though we continue to await the SG’s response to the Loving cert petition.

This week at CAAF:  CAAF will hold its judicial conference on Wednesday and Thursday.  The schedule is available here.  A registration form is available here.  Several CAAFlog contributors will be attending; perhaps we can do some live blogging from the conference.

This week at the CCAs:  On Tuesday, the Coast Guard Court will hear oral argument in United States v. Sapp, in which the assigned error is:

I. This Court Should Consider the Unreasonable and Unexplained Post-Trial Delay in Determining the Sentence that Should be Approved under Article 66(c) with particular attention to the following questions:
1. What circumstances short of denial of due process should be considered in deciding whether post-trial delay warrants “Tardif relief”?
2. What are the reasons to grant or deny “Tardif relief” in this case?

The Army Court’s web site is down, so I can’t determine whether ACCA is scheduled to hear any oral arguments this week.