5 new grants

Any concern about the number of grants in October is obliterated by a flurry of petition grants posted on CAAF's web site today. On 6 November alone, CAAF doubled its number of plenary grants in all of October by granting review of 4 cases. On 7 November, it granted another, raising November's total to 6.

Let's look at the new cases:

United States v. Beatty, No. 06-0793/AF, asks whether the Air Force Court impermissibly considered evidence from outside the record in conducting its factual and legal sufficiency reviews.

In two more cases, CAAF continues the 2007 term's fascination with members challenges.

United States v. Johns, No. 06-0683/NA, asks whether NMCCA applied the correct standard in affirming the military judge's denial of a members challenge.

United States v. Maschek, No. 06-0621/AR, in addition to presenting yet another members challenge issue, reverses this term's trend by actually framing informative issues:

I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING FIVE OUT OF EIGHT OF APPELLANT'S CHALLENGES FOR CAUSE, WHERE FOUR OUT OF THE SIX MEMBERS EITHER EXPRESSED DIFFICULTY CONSIDERING APPELLANT'S REHABILITATIVE POTENTIAL AND THE FULL RANGE OF POTENTIAL PUNISHMENTS, OR KNEW THE PROSECUTORS, OR BOTH.

II. WHETHER APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR AND IMPARTIAL PANEL, WHERE FOUR OUT OF THE SIX MEMBERS EITHER EXPRESSED DIFFICULTY CONSIDERING APELLANT'S REHABILITATIVE POTENTIAL AND THE FULL RANGE OF POTENTIAL PUNISHMENTS, OR KNEW THE PROSECUTORS, OR BOTH.

(I wonder if there is anything we can do about the unfortunate practice of capitalizing everything in the issue presented. Bryan Garner makes a compelling case that such capitalization actually hinders understanding. Normal capitalization provides important cues and clues to the reader -- they are lost if everything is capitalized or even when the first letter of each word is capitalized.)

United States v. Roberson, No. 06-0611/MC, appears to present a Holmes v. South Carolina-type issue by asking whether the military judge improperly excluded evidence of duress arising from Roberson's fear of a Mr. Matson and the fact that Mr. Matson owned a gun. (CAAF identifies Mr. Matson by the more genteel appellation "D.M.," but he is identified by complete name in NMCCA's unpublished Roberson opinion, which is available at http://www.jag.navy.mil/NMCCA/200301539.UNPUB.doc.)

Finally, on 7 November, CAAF granted review in United States v. Schroder, No. 06-0657/AF. Schroder, again daring to frame informative issues, deals with uncharged misconduct in a child molestation case:

I. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING EVIDENCE OF ALLEGED SEXUAL MOLESTATION ACTS BY APPELLANT TOWARDS [SC] AND [JR] AND FAILED TO ADEQUATELY INSTRUCT THE PANEL ON HOW TO USE SUCH EVIDENCE.

II. WHETHER THE TRIAL COUNSEL IMPROPERLY ENGAGED IN INFLAMMATORY, IRRELEVANT, AND PREJUDICIAL COMMENTS DURING ARGUMENT BY URGING THE MEMBERS DURING THE MERITS AND SENTENCING TO RENDER JUSTICE NOT ONLY FOR THE ALLEGED VICTIMS OF THE CHARGED OFFENSES BUT FOR AN ALLEGED VICTIM OF UNCHARGED MISCONDUCT AS WELL.

Like the squirrels in my yard busily harvesting nuts for the winter, CAAF is spending its November stocking up on cases for oral argument.

--Dwight Sullivan