This week at SCOTUS: No military justice developments are anticipated at SCOTUS this week.

This week at CAAF:  CAAF has completed its scheduled oral arguments for the term.  By my count, six argued cases remain undecided (Ellerbrock, Gaddis, Lusk, Fosler, Sweeney, and Baker).

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

This week at the Supremes:  We’re still keeping our eye on the Prather case.  It appears that the SG has allowed the filing deadline to pass without taking action, but there’s sometimes a delay in requests for extensions of cert petition filing deadlines showing up on the e-docket.  [Insert familiar disclosure here.]

This week at CAAF:  CAAF will hear its last scheduled argument of the year on Wednesday, 6 July (also known as Leg Day to Code 45 alumni). The case, United States v. Baker, No. 11-6007/AR, is an appeal of ACCA’s reversal of a trial judge’s ruling upon an Article 62 appeal.  It presents this issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED (1) IN FINDING THAT THE MILITARY JUDGE’S SUPPRESSION OF THE IDENTIFICATION EVIDENCE WAS AN ABUSE OF DISCRETION, AND (2) IN HOLDING THAT THE PRETRIAL IDENTIFICATION PROCEDURES WERE RELIABLE UNDER THE CIRCUMSTANCES WHERE THE ARMY COURT MADE IMPERMISSIBLE FINDINGS OF FACT UNDER ARTICLE 62 AND RELIED ON SUCH FINDINGS IN OVERRULING THE MILITARY JUDGE.

This week at the CCAs:  It doesn’t appear that any of the CCAs are hearing oral argument this week.

This week in stadium give aways:  On Saturday, 9 July, the Hagerstown Suns (low A affiliate of the Washington Nationals) will be giving away a Captain Dahlgren bobblehead.  A picture of the bobblehead is availabe here. I shall, of course, be there.

This week at the Supremes:  The Solicitor General’s extended deadline for filing a cert petition in Prather elapses on Wednesday, 29 June.  The deadline for seeking a further extension from the Chief Justice has already passed.  To the best of my knowledge, the SG didn’t request a second extension. [Disclosure:  I'm one of Airman Prather's appellate defense counsel.]

This week at CAAF:  CAAF is not hearing oral arguments this week.  The final scheduled oral argument for the term is set for 6 July in an Army Article 62 appeal case.

This week at the CCAs:  AFCCA will have a dedication ceremony for its new courtroom on Tuesday.  (Unfortunately I’ll have to miss it due to an appointment on the Missouri River’s Rive Gauche.)  On Friday at 0930, NMCCA will once again hear oral argument in the case of United States v. Lee, No. NMCM 200600543, which presents these issues:

I. WHETHER IT WAS A CONFLICT OF INTEREST FOR DETAILED DEFENSE COUNSEL TO SERVE CONCURRENTLY AS TRIAL COUNSEL IN OTHER CASES AND BE EVALUATED BY OPPOSING COUNSEL.

II. WHETHER CAPT LEE KNOWINGLY WAIVED THE CONFLICT.

III. WHETHER CAPT LEE MUST SHOW SPECIFIC PREJUDICE IN ORDER TO HAVE THE FINDINGS AND SENTENCE SET ASIDE.

The big story of the week in military justice appellateland is that AFCCA will hold its first oral argument in its new courtroom tomorrow.  Alas, I’ll probably miss it because I have a prescheduled client conference at 1000 tomorrow and in the event that I’m done with my conference before the oral argument is complete, I’m not sure I’d be able to get into the AFCCA courtroom — which is about as impossible to access as the L2 Lounge at midnight on a Saturday.  If I’m unable to get in, perhaps one of our readers will post thoughts about the new courtroom as an argument venue.

This week at the Supremes:  There are no military justice cert petitions currently pending at the Supremes.  The Supremes will issue one or more opinion tomorrow and on Thursday, so the Bullcoming watch continues.

This week at CAAF:  CAAF has completed all of its scheduled oral arguments for the term.  Ten argued cases remain undecided:  Eslinger, Ellerbrock, Gaddis, Schuber, Phillips, Lusk, Zarbatany, Fosler, Sweeney, and Martinez.

This week at the CCAs:  AFCCA will hear oral argument at 1000 tomorrow in United States v. Boore, Misc. Dkt. No. 2011-01, an Article 62 appeal.  Here’s the issue:  “WHETHER THE MILITARY JUDGE ERRED IN FINDING ARTICLE 120(H) FACIALLY UNCONSTITUTIONAL AND DISMISSING CHARGE II AND ITS SPECIFICATION ON THOSE GROUNDS.”  The central issue in the case appears to be whether the unconstitutional portions of Article 120 are severable from the statute’s remainder.  The NMCCA and CGCCA websites don’t show any scheduled oral arguments for this week; I’m unable to access ACCA’s website at the moment to check for arguments there this week.

This week at the Supremes:  There are no military justice cases currently pending before the Supremes.  The deadline for either a cert petition or request for additional time to file a cert petition in United States v. Prather, 69 M.J. 338 (C.A.A.F. 2011), is Wednesday, 15 June.  We know that the Air Force’s appellate government division (JAJG) has drafted a cert petition in Prather.  (That’s a bit funny in and of itself because one of the new Article 120′s greatest critics when he was a trial judge was the current head of JAJG.)  SCOTUS’s website doesn’t indicate that the SG has asked the Chief Justice for additional time to file a cert petition in Prather, but there’s often a substantial gap between such a request being made and the request showing up on SCOTUS’s website.  We’ll continue to monitor Prather.  [Familiar disclosure:  I'm one of Prather's appellate defense counsel.]

This week at CAAF:  CAAF has completed its scheduled oral arguments for the term.  Ten argued cases remain undecided:  Eslinger, Ellerbrock, Gaddis, Schuber, Phillips, Lusk, Zarbatany, Fosler, Sweeney, and Martinez.

This week at the CCAs:  None of the available CCA websites lists an oral argument for this week.  (AFCCA’s website is still down.)

This week at the Supremes:  To the best of my knoweldge, there are no military justice matters currently on the Supremes’ docket.

This week at CAAF:  CAAF has completed its scheduled oral arguments for the term.  By my count, there are 12 cases that have been argued but not yet decided (Sullivan, Eslinger, Ellerbrock, Gaddis, Schuber, Phillips, Lusk, Hull, Zarbatany, Fosler, Sweeny, Martinez).  It appears likely that CAAF will issue 45 opinions this term.

This week in the CCAs:  There don’t appear to be any CCA oral arguments scheduled for this week.

This week in U.S. district court:  The defendants’ reply to the plaintiff’s opposition to the defendants’ dispositive motions in Partington v. Houck, 1:10-cv-01962-HHK, is due tomorrow.  Partington, among other things, tests the authority of the Judge Advocate General of the Navy to impose professional discipline on a civilian counsel.  We’ll post the defendants’ reply once we get our hands on it.

The big military justice event this week will be the ACCA oral argument on Article 2(a)(1o)’s constitutionality in United States v. Ali.

This week at the Supremes:  To the best of my knowledge, there are no military justice cases on the Supremes’ docket.

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

This week at the CCAs:  ACCA will be hearing two oral arguments on Wednesday.  By far the more significant of the two is United States v. Ali, No. ARMY No. 20080559, being heard at 1400 on this issue:  “WHETHER THE MILITARY JUDGE ERRED IN RULING THAT THE COURT HAD JURISDICTION TO TRY APPELLANT AND THEREBY VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AND SIXTH AMENDMENTS BY REFUSING TO DISMISS THE CHARGES AND SPECIFICATIONS.”  (unfortunately I won’t be able to attend the argument, so I’m hoping someone else can make it and post a synopsis.)  At 1000 on Wednesday, ACCA will hear oral argument in United States v. Martinez, No. ARMY 20090582, on these assignments of error:

I.  IN HOLDING MR. AZIZ’S TESTIMONY AS INESSENTIAL TO A FAIR TRIAL THE COURT PREJUDICIALLY ERRED.

II.  THE ADDENDUM TO THE STAFF JUDGE ADVOCATE RECOMMENDATION ERRONEOUSLY AND WITH PREJUDICE TO APPELLANT CHALLENGES THE CORRECTNESS OF THE DEFENSE’S POST-TRIAL SUBMISSION.

III.  SPECIFICATIONS 1 AND 2 OF CHARGE III CONSTITUTE AN UNREASONABLE MULTIPLICATION OF CHARGES.

IV.  CHARGE II AND CHARGE III ARE MULTIPLICIOUS AS A MATTER OF LAW.

Our blog was down for roughly 48 hours.  Four people noticed.  That sounds about right.

This week at the Supremes:  The denial of cert in Luke v. United States, No. 10-1294, will almost certainly be on tomorrow’s order list.

This week at CAAF:  CAAF will be holding a postpartum oral argument on Tuesday in United States v. Martinez, No. 11-0167/AR.  Here’s the issue:

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.

This week at the CCAs:  On Tuesday, ACCA will  hear a very important oral argument in United States v. Ali, No ARMY 20080559, on this issue:  “WHETHER THE MILITARY JUDGE ERRED IN RULING THAT THE COURT HAD JURISDICTION TO TRY APPELLANT AND THEREBY VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AND SIXTH AMENDMENTS BY REFUSING TO DISMISS THE CHARGES AND SPECIFICATIONS.”  Ali is the case in which a civilian contractor was prosecuted by a court-martial under Article 2′s expansion of jurisdiction to reach civilians accompanying U.S. forces in contingency operations.

On Thursday, NMCCA will hear oral argument in United States v. Nash on this issue:

Did the military judge abuse his discretion in denying the Appellant’s challenge for cause against one of the members, creating serious doubt as to whether the Appellant had a fair and impartial panel when that member questioned a defense witness during the findings phase of the court-martial about whether the witness believed that a pedophile could be rehabilitated.

On Thursday, AFCCA will hear oral argument in the Nevada Supreme Court’s courtroom in Las Vegas at 1300.  The case being heard is United States v. Datavs, No. ACM 37537, on this issue:

WHETHER APPELLANT RECEIVED INEFFECTIVE ASSITANCE OF COUNSEL WHEN DEFENSE COUNSEL FAILED TO OBTAIN AN EXPERT CONSULTANT IN THE FIELD OF SEXUAL ASSAULT EXAMINATIONS, FAILED TO MAKE CHALLENGES FOR CAUSE AGAINST TWO PANEL MEMBERS THAT WERE ALSO BASE VICTIM ADVOCATES, FAILED TO PREPARE THE NECESSARY FOUNDATION TO ADMIT TELEPHONE RECORDS FOR THE PURPOSE OF IMPEACHING THE COMPLAINING WITNESS, FAILED TO ARGUE MISTAKE OF FACT DURING FINDINGS ARGUMENT, AND FAILED TO PRESENT EVIDENCE IN SENTENCING REGARDING SEX OFFENDER REGISTRY REQUIREMENTS.

Of course, the biggest question is whether Judge Mathews the Greatest will be on hand to see his alma mater at work.

This week at the Supremes:  The Luke cert petition, No. 10-1294, has been scheduled for Thursday’s conference.  If there’s no call for a response from the SG before then, it’ll be listed as cert denied on next Monday’s order list.

This week at CAAF:  CAAF hears its final oral arguments of the term this week, followed by the annual end-o’-term reception on Wednesday.  (Alas, it looks like I’ll have to miss this  year’s soiree.)  CAAF is saving some of the best for last — this week’s arguments in Fosler, Sweeney, and Hohman in particular have the potential to be momentous. 

Tomorrow’s lone argument is in Fosler, No. 11-0149/MC, which has led to the construction of the Fosler Trailer Park (h/t Snuffy).  Here’s the granted (and granted and granted . . .) issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER AND JONES.

There will be two arguments on Tuesday.  First out of the chute is Martinez, No. 11-0167/AR, which presents this issue:

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.

Next up is Sweeney, No. 10-0461/NA, which will provide CAAF with an opportunity to further explore the Confrontation Clause implications of admitting drug testing reports into evidence, a subject that may also be influenced by the Supremes’ impending decisoin in Bullcoming v. New Mexico, No. 09-10876, which will almost certainly be out by the end of June.  Here are the granted issues in Sweeney:

WHETHER, IN LIGHT OF THE UNITED STATES SUPREME COURT’S RULING IN MELENDEZ-DIAZ v. MASSACHUSETTS, 557 U.S. ___, 129 S.CT. 2527 (2009), THE ADMISSION INTO EVIDENCE OF THE NAVY DRUG SCREENING LABORATORY URINALYSIS DOCUMENTS VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

WHETHER TRIAL DEFENSE COUNSEL’S OBJECTION TO THE DRUG LABORATORY REPORT CONSTITUTED A VALID CRAWFORD OBJECTION.  IF NOT, THEN WHETHER TRIAL DEFENSE COUNSEL WAIVED OR FORFEITED THE CONFRONTATION CLAUSE ISSUE, AND, IF FORFEITED, WHETHER ADMISSION OF THE REPORT CONSTITUTED PLAIN ERROR.

Wednesday’s arguments start wtih Prince, No. 11-6003/AR, which presents this issue:

WHETHER THE U.S. ARMY COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING THE MILITARY JUDGE’S RULING TO SUPPRESS THE ACCUSED’S STATEMENTS TO A CRIMINAL INVESTIGATION COMMAND (CID) AGENT.

The final regularly scheduled argument of the term is in Hohman, No. 11-6004/MC, which arises from an Article 62 appeal and presents this issue:

WHETHER THE NMCCA ERRED IN FINDING GOOD CAUSE FOR THE SEVERANCE OF SGT HOHMAN’S ATTORNEY-CLIENT RELATIONSHIP WITH HIS DETAILED DEFENSE COUNSEL WHERE (1) THE COUNSEL REQUESTED TO STAY ON ACTIVE DUTY TO REPRESENT SGT HOHMAN, (2) THE GOVERNMENT REJECTED THAT REQUEST AND HAS NOT DEMONSTRATED THAT IT DID SO DUE TO TRULY EXTRAORDINARY CIRCUMSTANCES OR MILITARY EXIGENCY, AND (3) THE JUDGE DID NOT DISCUSS THE COUNSEL’S DEPARTURE WITH SGT HOHMAN UNTIL MONTHS AFTER THE SEVERANCE.

This week at the CCAs:  Viva Las Vegas.  AFCCA will be hearing oral argument in Las Vegas on Thursday.  The argument isn’t listed on AFCCA’s website, so I’ll have to get additional info (such as the case name, number, location, and issue) on Monday.  I’ll try to post more info Monday evening.

This week at the Supremes:  There aren’t any anticipated SCOTUS military jusice developments on my radar screen for the week.

This week at CAAF:  CAAF isn’t hearing oral arguments this week.  Next week is the last scheduled argument week for the term.

This week at the CCAs:  ACCA will hear two oral arguments on Wednesday.  First up is United States v. Dietz, No. ARMY 20081031, which presents these issues: 

I.  [WHETHER] THE MILITARY JUDGE ERRED IN EXCLUDING EVIDENCE OF THE ALLEGED VICTIM’S PRIOR SEXUAL BEHAVIOR BECAUSE IT WAS CONSTITUTIONALLY REQUIRED TO DEMONSTRATE THE ALLEGED VICTIM’S MOTIVE TO FABRICATE.

II.  IF THIS COURT FINDS THE MILITARY JUDGE DID NOT ERR IN EXCLUDING THE PHOTOGRAPHS AT ISSUE IN ASSIGNMENT OF ERROR I, [WHETHER] TRIAL DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OFFER SUFFICIENT EVIDENCE TO SUPPORT THE ADMISSION OF SUCH PHOTOGRAPHS.

Next up is United States v. McCullough, No. ARMY 20090206, which presents these issues:

I.  WHETHER THE EVIDENCE IS FACTUALLY AND LEGALLY SUFFICIENT TO SUPPORT THE FINDINGS OF GUILTY.

II.  WHETHER APPELLANT’S CONVICTION MUST BE SET ASIDE BECAUSE THE CONVENING AUTHORITY DID NOT PROPERLY SELECT THE COURT MEMBERS.

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

This week at CAAF:  CAAF isn’t hearing oral arguments this week.  Arguments will resume the week of 16 May when CAAF will hear, barring unforeseen circumstances, its six final oral arguments of the term.

This week at the CCAs:  No CCA website lists an oral argument for this week.

This week in U.S. district court:  Tuesday is the filing deadline for the long-awaited plaintiff’s response to the defendants’ dispositive motions in Partington v. Houck, 1:10-cv-01962-HHK, a case in the U.S. District Court for the District of Columbia that tests the power of the Judge Advocate General of the Navy to impose professional responsibility discipline on civilian counsel appearing in naval courts-martial.

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

This week at CAAF:  CAAF has no oral arguments scheduled for this week.  Barring an unexpected development, arguments for the Air Force and Coast Guard have concluded for the term.  The term’s final oral arguments are scheduled for the week of 16 May.  The arguments that week all arise from the Marine Corps, Navy, or Army.

This week at the CCAs:  On Thursday, ACCA will hear oral argument in United States v. Gilbertson, No. ARMY 20080428.  Here are the issues/assignments of error in the case:

I.  WHETHER UNLAWFUL COMMAND INFLUENCE BY MAJ SABINE TAINTED CPT GILBERTSON’S COURT-MARTIAL.

II.  APPELLANT’S PLEAS OF GUILTY TO CHARGE II, AND SPECIFICATION 1 OF CHARGE III, WERE IMPROVIDENT WHERE THE DEFENSE OF ENTRAPMENT WAS REASONABLY RAISED BY THE EVIDENCE AND THE MILITARY JUDGE DECLINED TO IDENTIFY THE AFFIRMATIVE DEFENSE AND ELICIT FACTS FROM APPELLANT DISCLAIMING AND DISPROVING THE ENTRAPMENT DEFENSE.

III.  WHETHER CPT GILBERTSON’S PLEAS AND TRIAL WERE TAINTED BY INEFFECTIVE ASSISTANCE OF COUNSEL PERTAINING TO GOVERNMENT NON-DISCLOSURE OF FAVORABLE EVIDENCE, AND UNREASONABLE SEARCH AND SEIZURE.

IV.  CHARGE I AND ITS SPECIFICATION FAIL FOR LEGAL INSUFFICIENT UNDER U.S. v. MILLER, 67 M.J. 87 (C.A.A.F. 2008) AND RELEVANT PRECEDENT WHERE ART. 134 CONVICTIONS FOR INDECENT ACTS UPON THE BODY OF A CHILD, UNDER ART. 80 ATTEMPT THEORIES REQUIRE THE PHYSICAL PRESENCE OF A CHILD’S BODY.

V.  THE CUMULATIVE EFFECT OF THE ERRORS IN THIS CASE EFFECTIVELY DENIED APPELLANT HIS RIGHT OT HE DUE PROCESS OF LAW AND TO A FAIR TRIAL, AND THUS, REQUIRES HAT THIS COURT SET ASIDE THE CONVICTION AND SENTENCE.

This week at the Supremes:  I’m unaware of any military justice cases currently pending before the Supremes.

This week at CAAF:  CAAF will be hearing two Air Force cases on Thursday.  The issue in United States v. Hull, No. 11-0131/AF, is:  “WHETHER THE STAFF JUDGE ADVOCATE ERRED IN ADVISING THE CONVENING AUTHORITY, PURSUANT TO RULE FOR COURTS-MARTIAL (RCM) 1106 THAT NO NEW TRIAL WAS WARRANTED, AND WHETHER THE CONVENING AUTHORITY ERRED BY FAILING TO ORDER A NEW TRIAL DESPITE THE STAFF JUDGE ADVOCATE’S ACKNOWLEDGEMENT THAT APPELLANT HAD PRESENTED NEW EVIDENCE THAT FELL WITHIN THE PARAMETERS OF RCM 1210.”  Following Hull, CAAF will hear oral argument in United States v. Zarbatany, No. 11-0165/AF, which presents these issues:

I.  WHETHER THE AFCCA ERRED IN FINDING THAT ILLEGAL CONFINEMENT CREDIT, AWARDED PURSUANT TO ARTICLE 13, UCMJ, CANNOT BE APPLIED TOWARDS A PUNITIVE DISCHARGE.

II.  WHETHER THE AFCCA ERRED BY FAILING TO GIVE MEANINGFUL RELIEF WHERE APPELLANT HAD 445 DAYS OF ILLEGAL PRETRIAL CONFINEMENT CREDIT IN EXCESS OF HIS APPROVED SENTENCE TO CONFINEMENT.

This week at the CCAs: This notice on AFCCA’s website announces that “[o]n 20 April 2011, the United States Air Force Court of Criminal Appeals will be relocating to Joint Base Andrews Naval Air Facility Washington.”  I’ll have more to say in the days ahead about AFCCA’s upcoming move.  But for the moment, I’ll give you a sneak peek at AFCCA’s new courtroom, which is gorgeous and manages — with one exception — to avoid the mistakes and lost opportunities that characterize NMCCA’s new courthouse.

Here’s the outside of the new AFCCA courthouse:

And here’s AFCCA’s new courtroom:

(click on the photo if you’d like to see a larger version of the image)

This week at the Supremes:  I’m unaware of any military justice cases currently at SCOTUS.

This week at CAAF:  CAAF isn’t hearing oral arguments this week.  Arguments resume on 21 April with a pair of Air Force cases.

This week at the CCAs:  On Tuesday, NMCCA will hear oral argument in United States v. Dixon, which presents these issues:

I. WHETHER THE COLLOQUY BETWEEN THE MILITARY JUDGE AND THE APPELLANT SUPPORTS A PLEA OF GUILTY TO MISSING MOVEMENT THROUGH NEGLECT, AS ORIGINALLY CHARGED BY THE CONVENING AUTHORITY.

II. WHETHER THE MILITARY JUDGE ABANDONED HIS ROLE AS A NEUTRAL ARBITER DURING A GUILTY PLEA FOR MISSING MOVEMENT THROUGH NEGLECT WHEN HE SUGGESTED IN A R.C.M. 802 CONFERENCE AND ON THE RECORD THAT THE APPELLANT’S RESPONSES REFLECTED HE IS GUILTY OF THE MORE SERIOUS OFFENSE OF MISSING MOVEMENT THROUGH DESIGN.

This week in U.S. district court:  The plaintiff’s response to the defendants’ summary judgment motions in Partington v. Houck, 1:10-cv-01962-HHK, is due tomorrow.  Assuming it’s available on PACER, we’ll post it tomorrow evening.