Before I went TAD this week I was looking for the results of the latest judicial screening board for the Navy and Marine Corps.  This list was released on Wednesday:

            Maj Troy H. Campbell, USMC

            CDR Robert J. Crow, JAGC, USN

            CAPT Terry C. Ganzel, JAGC, USNR

            CDR George Glenn Gerding, JAGC, USNR

            CDR John S. Han, JAGC, USNR

            CDR Donald C. King, JAGC, USN    

            CDR Brian C. Lansing, JAGC, USNR

            LCDR M. J. Luken, JAGC, USN

            CDR Monte G. Miller, JAGC, USNR

            LCDR Robert P. Monahan Jr., JAGC, USN

            CDR W. A. Record, JAGC, USN

            CDR Aaron C. Rugh, JAGC, USN

On the active-duty side, CDRs Crow, King, and Rugh are all plank-owner experts of the Navy Military Justice Litigation Career Track.  LCDRs Luken and Monahan are specialists on the track.  CDR Record is the only non career track pick on the active side.   Congrats to all!

As CAAFlog posted below, CAAF decided a probable cause case yesterday. The majority in United States v. Clayton finds no error in a “military magistrate’s” finding of probable cause where a host of facts connected a child pornography website that was accessed from a government computer in Kuwait to the appellant.

As Judge Ryan points out in her vigorous dissent that the magistrate did not have evidence addressing whether (1) the appellant had actually received child pornography from the website via email or otherwise that might be on said computer, (2) the appellant’s laptop was the computer that received emails from or was used to access the illicit website, or (3) the location of the appellant’s government issued laptop that the agents were seeking when they requested authorization to search his quarters at Camp Arifjan.  Essentially, Judge Ryan is taking her dissent in Macomber, that CAAFlog characterized, here, as “a highly case-specific dissent,” and making a federal case out of it . . . so to speak. 

Given the criticism (by the defense bar and dissenting judges, of course) that has been heaped on two of the cases cited by the majority, United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006) (en banc) and United States v. Martin, 426 F.3d 68  (2d Cir. 2005), Judge Ryan’s dissent makes this case particularly attractive for cert. watchers.

As CAAFlog noted below, Judge Boyle rejected MSgt Hennis’ habeas corpus petition asking the US District Court to intervene to stop his court-martial.  Opinion available here.  Judge Boyle finds that MSgt Hennis’ argument regarding break in service does not make him similarly situated with civilians, whom the Supreme Court has said in Hamdan v. Rumsfeld and Toth v. Quarles (and Price v. Gates for that matter) are not subject to the same exhaustion requirements as servicemembers.  Judge Boyle finds, quoting Councilman v. Schlesinger,  that:

The issues Hennis has raised before this court may be plausible defenses at the court martial, as well as, appealable issues if the outcome ends in a conviction.  Attempting to resolve any of these questions would be inappropriate at this time with a court martial in progress.  Therefore, as the circumstances are set out, this court, like that in Councilman, “discerns nothing that outweighs the strong considerations favoring exhaustion of remedies or that warrants intruding on the integrity of the military court processes.”

Opening statements in the court-martial are today, see latest here.

According to this report, Judge Boyle of the United States District Court for the Eastern District of North Carolina has rejected the Hennis defense’s request that he stop the trial.  Unfortunately I’m on the road without my PACER password.  I’ll try to get a copy of the opinion and post it later in the week.

This seems to be a slow week at the trial level.  For those that don’t know, the vast majority of the military judges are in Reno, NV for the judge’s conference.  And a large chuck of the Marine Corps defense bar is in California for defense-specific training.  Not being in the Marine Corps or a judge, I remain in the lovely Tide Water area.

Speaking of judges, the Navy and Marine Corps held a judicial screening board several weeks ago.  Although I did not have a package before the board, I know a few that did.  But no board results.  I assume that the JAG has to approve them.  Perhaps there is a secret vote in Reno this week.   In any event, we should get those results soon.  Good luck to those that applied.  This may be one of the first boards where a significant number of the Navy’s military justice litigation career track folks applied.  It should be interesting to see who is picked.

Today’s NYT article, here, about leniency in federal sentencing cases in the wake of Porter v. McCollum, see Z’s post here and prior NYT editorial here, is a must read for anyone representing Vets outside of courts-martial (and in the military justice system, for that matter). 

The NYT piece focuses on federal sentencing in the wake of the Booker decision making the USSG advisory rather than mandatory, thus giving judges discretion to consider factors like Veteran status.  The article also discusses the recent growth in Veterans’ courts, in this instance meaning courts that deal with offenses committed by vets, that now exist in at least 22 jurisdictions, according to Dahlia Lithwick’s recent article in Newsweek, here.  Most have a stated purpose much like the Alaska Veterans’ Court to:

[P]revent veterans charged with misdemeanors from falling into a life of crime. Rather than arresting and jailing veteran offenders for a few days or weeks only to return them to the same type of life, this court connects veterans to VA resources.

According to the Philadelphia Inquirer, here, the newest of the courts, the Philadelphia Veterans’ Court just opened on March 3, 2010 to a docket of 12-15 vets.  Here is a link to a collection of articles, pro and con, on these new courts.

AP reports here that opening statements in the capital Hennis court-martial at Fort Bragg are scheduled for Wednesday morning.

Here’s an aspect of the congressional response to the SEALs cases of which I was unaware before reading this Human Events piece today:  three resolutions have been introduced in Congress to honor SO2 McCabe, SO2 Keefe, and SO1 Huertas for capturing Ahmed Hashim Abed.  H. Res. 977 was introduced by Rep. Poe of Texas and has 76 co-sponsores.  H. Res. 988 was introduced by Rep. Duncan Hunter of California and has 43 co-sponsors.  Both resolutions were referred to HASC’s Subcommittee on Terrorism, Unconventional Threats, and Capabilities.  S. Res. 439 was introduced by Senator Ensign of Nevada and has three co-sponsors.  It’s been referred to SASC.

The AP reports here that on Friday, Judge Tierney Carlos ordered the convening authority to grant immunity to five potential defense witnesses in the Navy SEAL case of United States v. Huertas.  The Virginian-Pilot’s article about the ruling is here.  Judge Carlos reportedly set a 24 March deadline for granting the immunity.  If that deadline isn’t met, he’ll order abatement of the prosecution.