This week at the Supremes:  There are no anticipated military justice developments at SCOTUS on our radar screen.  We continue to await the SG’s response to the cert petition in Loving v. United States, No. 09-989.

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.

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.

In United States v. Ross, __ M.J. __, No. 09-0242/MC, a Marine Corps warrant officer was charged with possessing child pornography on divers occasions.  The military judge found Ross guilty, but excepted the words “on divers occasions” over a certain period of time.  Today, applying the Walters line of cases, CAAF reversed Ross’s findings and sentence and dismissed the charges against him.  Judge Ryan wrote for a unanimous court.  The opinion is available here.

Interestingly, Ross’s appeal was filed at NMCCA without raising a Walters (or any other) issue.  NMCCA specified the issue and then, in this opinion, affirmed.  United States v. Ross, No. NMCCA 200800313 (N-M. Ct. Crim. App. Dec. 4, 2008) (per curiam).  NMCCA reasoned that because the possession was a continuing offense, the “on divers occasions” language was mere surplusage so striking it didn’t render the findings ambiguous.  CAAF disagreed, explaining that “there was possession of distinct sets of images on three different media.  While the military judge may have deemed the possession ‘continuing’ and deleted the words ‘on divers occasions’ as surplusage,” that isn’t necessarily the reason for those words’ exception.  Ross, slip op. at 8.  Possession, CAAF observed, “though a cotinuing offense — may still be appropriately charged ‘on divers occasions.’”  Id.

Here’s the part of Ross that I particularly like.  Ross provides guidance for how a finding of guilty may be affirmed in some future case despite an unexplained exception of “on divers occasions” language from a finding:  “the Government could nevertheless prevail were we to conclude that the evidence was legally insufficient to show that Appellant was guilty” with respect to all but one potential basis for conviction.  Where the finding as excepted could have only one potential basis, then the verdict would not be ambiguous.  That reasoning, however, doesn’t apply in this case becasue there could have been a legally sufficient basis for a finding of guilty on more than one theory.

Citing last month’s decision in United States v. Trew, 68 M.J. 364 (C.A.A.F. 2010), CAAF notes that the remedy here is to set aside the findings and the sentence and dismiss the charge and its spec with prejudice.

Ross will likely define the battleground in future Walters-type cases.  The issue will become whether all but one potential basis for conviction would be legally insufficient.  Another issue likely to be contested in future cases is whether that analysis applies only in a judge-alone case like Ross–where the fact finder is presumed to know and apply the law–or whether it applies in members cases as well.

Appears the Hennis capital court-martial members panel is down to 10 (half enlisted) after both sides exercised 1 peremptory challenge yesterday, see FayObserver coverage here. The court resumes today with six new potential members to interview, 3 officer and 3 enlisted.

This SCOTUSblog post discusses recent revisions to the Supreme Court’s rules.

For those of us who are appellate practitioners, Gene Fidell’s guide to CAAF’s rules is a necessary piece of equipment.  As announced on NIMJ’s blog, here, a brand new 13th edition of the guide is now posted here.

Here’s a link to retired Master Sergeant Timothy Hennis’s latest filing in support of his habeas petition attempting to halt his capital court-martial at Fort Bragg.  As we noted here, U.S. District Court Judge Boyle ordered additional briefing on the habeas petition.  The Respondents’ additional brief is here.  The petition is now ripe for a ruling.

There wasn’t a “this is all off the record” statement so I’ll share with you some thoughts about today’s CAAF Conference generally and the presenters comments. 

At least one other attendee and I were both rather surprised at the relative absence of the service appellate shops from the conference.  Considering the line up at the CAAF Conference, that was surprising.  While The Honorable Jeh Johnson and Togo West were not speaking on how to have your petition accepted by the CAAF judges, there talks were relevant and topical for judge advocate and, generally, military lawyer professional development.  Further, I thought the talk by CAPT Crawford (Legal Counsel to the CJCS) that focused on detainee and similar issues was very thoughtful and something that, at a minimum,  judge advocates involved in the military commission process would find helpful.   Two of the five other speakers today were wheelhouse speakers for military law litigators, Judge McAuliffe on persuasive advocacy and Professor Donohue on the State Secrets Doctrine. 

As for the actual presentations, the best line of the day came from Mr. Johnson who said that leading by example in a nation of laws meant playing by the rules when the going is easy and when it is hard.   I had to chuckle though when Mr. Johnson alluded to the tanker competition as another one of the issues on his plate, in light of recent developments. 

If I have more time later I’ll update this with more from the first half of the day.  Maybe Mizer can give you an update on the second half of the day

ACCA is hearing a case this week.  On Friday, ACCA will hear oral argument in United States v. Thompson, No. ARMY 20071253, on these two assignments of error:

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