This week at SCOTUS: A new cert. petition with filed in Gray v. United States, No. 17-7769 (CAAFlog case page). Ronald Gray is one of only four prisoners on military death row (our #2 Military Justice Story of 2016). Back on November 8, in a per curiam decision I analyzed here, CAAF dismissed a writ-appeal petition with prejudice. The decision was so remarkable that the next day I wrote a second, deeper analysis (available here). Gray’s cert. petition questions CAAF’s dismissal. The petition is available here. The questions presented are:
1. Which court system, Article I military or Article III civil, appropriately exercises jurisdiction in final military cases to conduct initial review of constitutional claims that arise after or in conjunction with direct appeal?
2. Does 28 U.S.C. § 1259(1) confer certiorari jurisdiction over a decision of the Court of Appeals for the Armed Forces dismissing a coram nobis petition in a military death penalty case?
I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:
- Dalmazzi v. United States, No. 16-961 (cert. granted Sep. 28; oral arg. on Jan. 16) (CAAFlog case page) (SCOTUSblog case page)
- Alexander v. United States, No. 16-9536 (held since conf. on Oct. 13)
- Abdirahman, et al. v. United States, No. 17-206 (held since conf. on Oct. 13)
- Cash, et al. v. United States, No. 17-840 (dist. for conf. on Feb. 16)
- Richards v. United States, No. 17-701 (pet. filed Nov. 9; resp. filed. Jan. 16; reply filed Jan 31)
- Roukis v. Dept. of the Army, No. 17-7321 (dist. for conf. on Feb. 16)
- Gray v. United States, No. 17-7769 (pet. filed Feb. 9, resp. due Mar. 19
This week at CAAF: The next scheduled oral arguments at CAAF are on February 27, 2018.
This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here).
Update: A reader informs me that the Army CCA will hear oral argument in one case this week, on Thursday, February 22, 2018, at 10 a.m. The CCA will hear argument on both an appeal and a petition for a new trial:
United States v. Kohlbek, No. 20160427
I. Whether the military judge erred by prohibiting the appellant from presenting evidence relevant to the appellant’s post-polygraph statement.
Petition for new trial:
Whether this court should grant appellant’s petition for new trial based on newly discovered evidence.
I. Whether the military judge abused his discretion by failing to suppress the appellant’s post-polygraph statement.
This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 6, 2018 (at Penn State Law).
This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments at the CCA.
This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Wednesday, February 21, 2018, at the George Washington University Law School, 2000 H Street NW, Washington, DC 20052, at 12:05 p.m.:
United States v. Hoffmann, NMCCA No. 201400067
Case Summary: In 2013, a general court-martial comprised of officer and enlisted members convicted the appellant of multiple charges involving a child, and for possessing child pornography. We affirmed the conviction the following year. In 2016, the Court of Appeals for the Armed Forces (CAAF) set aside the findings and sentence, dismissing the child pornography charges with prejudice and authorized a rehearing on the remaining charges. [(CAAFlog case page)]
At his rehearing, a general court-martial comprised of officer members convicted the appellant, contrary to his pleas, of two charges involving a child. The appellant was sentenced to reduction to pay grade E-1, 10 years’ confinement, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the adjudged sentence and, except for the punitive discharge, ordered it executed.
I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED PROPENSITY EVIDENCE UNDER MILITARY RULE OF EVIDENCE 414 AND FAILED TO CONDUCT A PROPER MILITARY RULE OF EVIDENCE 403 BALANCING TEST.
II. WHETHER THE MILITARY JUDGE ERRED WHEN HE DID NOT EXTEND HIS RULING THAT COLONEL WOODARD WAS DISQUALIFIED FROM PROVIDING INPUT ON THE ARTICLE 34, UCMJ, LETTER AS STAFF JUDGE ADVOCATE TO INCLUDE OTHER AREAS OF PRETRIAL ADVICE.
III. WHETHER THE MILITARY JUDGE SHOULD HAVE RECUSED HIMSELF AS HE HAD BEEN THE REPORTING SENIOR TO THE MILITARY JUSTICE OFFICER DURING THE INITIAL INVESTIGATION AND WAS INFORMED BY NCIS ON MATTERS RELATED TO THE APPELLANT’S CASE.