This week at the Supremes:  There aren’t any anticipated military justice developments at the Supremes this week on my radar screen.

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

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 the Supremes:  I’m unaware of any anticipated military justice developments at the Supremes this week.

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 the Supremes:  I’m unaware of any anticipated military justice developments at the Supremes this week.

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.

Tomorrow CAAF will hear oral argument in Garner, No. 09-0729/MC, where the granted issue is:  

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.

CAAF is hearing two oral arguments today and one tomorrow.  Today’s arguments are in United States v. Mullins, No. 07-0401/NA, and United States v. Estrada, No. 09-0822/AR.

This week at the Supremes:  The SG’s response to Dwight Loving’s cert petition, NO. 09-989, is due on Friday.

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 the Supremes:  No anticipated military justice developments at the Supremes are on my radar screen for this week.

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

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 the Supremes:  I’m unaware of any anticipated military justice developments at the Supremes this week.

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?