Friday, October 20, 2006

Moreno No More?

A glance at the CAAF Daily Journal shows a recent spat of Moreno grants and findings of no prejudicial post-trial delay beyond a reasonable doubt. Was Judge Crawford's final act to convince the other members of the Court that there really is no such thing as prejudicial post-trial delay? Aside from the sheer volume of 4-1 decisions, this could be her legacy.

Posted by No Man


Dwight Sullivan said...

No-Man, perhaps CAAF thinks that Moreno has achieved its desired effect -- or at least that it should wait to see whether it has.

In The Brethren, Woodward and Armstrong write about the Supreme Court's "movie day":

Move day was the humorous highpoint of most terms. Year after year, several of the Justices and most of the clerks went either into a basement storeroom or to one of the larger conference rooms to watch feature films that were exhibits in obscenity cases that had been appealed to the Court.

Douglas, and Black during his years on the Court, never went. In their view, nothing could be banned. "If I want to go see that film, I should pay money," Black once said, and he wondered aloud why nine men, many in their seventies, should make judgments about sexuality. The Court was acting as a "Supreme Board of Censors," he said.

Burger too preferred not to go.

But the others sat on folding chairs with their clerks, watching such films as I Am Curious (Yellow) projected onto a white wall. During his later years, Harlan watched the films from the first row, a few feet from the screen, able only to make out the general outlines. His clerk or another Justice would dscribe the action. "By Jove," Harlan would exclaim. "Extraordinary."

Clerks frequently mocked Stewart's approach to obscenity, calling out in the darkened roo: "That's it, that's it, I know it when I see it."

Bob Woodward & Scott Armstrong, The Brethren 198 (1979).

Maybe CAAF is afraid that Moreno will devolve into their own hellish version of "movie day," with the judges having to devote endless attention to the potentially prejudicial effect of some particular post-trial postponement. Maybe they are slowly disengaging. But let's hope they don't adopt a "contemporary community standard" for post-trial delay. Under the Miller standard, nothing must be obscene in West Hollywood; in the naval service, nothing would be inordinate post-trial delay.

Marcus Fulton said...

I had an interesting discussion with a counsel involved in Moreno, who said they are actually going to retry him. Seems as though the original SJA rotated back to Okinawa and thinks this one needs to be retried. They even want to do in in Japan, even though none of the original players are there. (Well, except for the SJA.) Sounds like some good issue are being generated already. Can't go too much into it here.