This week at CAAF

CAAF will hear three oral arguments this week, all in Army cases. According to the scheduled hearings page on CAAF's web site, all three arguments will feature that same appellate defense counsel -- Major Billy B. Ruhling -- and two will feature the same appellate government counsel -- Captain Edgar E. Wiggers. It will be interesting to see whether these two counsel actually dominate CAAF's week to that extent or whether some subs will be called in off the bench.

The issues in all three cases appear intensely interesting, yet I couldn't find any of the opinions below on either LEXIS or ACCA's web site.

On Tuesday, the only scheduled case is United States v. Green, No. 06-0520/AR. The granted issue is

WHETHER THE MILITARY JUDGE VIOLATED APPELLANT'S DUE PROCESS RIGHTS WHEN HE SENTENCED HIM BASED UPON HIS PERSONAL RELIGIOUS BELIEFS RATHER THAN LEGITIMATE SENTENCING PRINCIPLES.

That's an issue that sounds fascinating, though it leaves the reader only guessing as to what might have actually happened.

On Wednesday, two cases are scheduled. The first is United States v. Wise, No. 06-0610/AR. In Wise, CAAF granted review of the following modified issue:

WHETHER APPELLANT'S CONFINEMENT CONDITIONS, INCLUDING AND IN PARTICULAR WITH RESPECT TO HIS CLAIM OF HAVING BEEN CONFINED WITH ENEMY PRISONERS OF WAR IN IRAQ, WERE UNLAWFUL, AND WHETHER, IN THE CONTEXT PRESENTED, APPELLANT FORFEITED HIS CLAIMS OF UNLAWFUL POST-TRIAL PUNISHMENT BY FAILING TO EXHAUST HIS ADMINISTRATIVE REMEDIES UNDER UNITED STATES v. WHITE, 54 M.J. 469 (C.A.A.F. 2001).

This issue appears to be the most interesting of the three. It should lead to an exploration of intersections between military justice and the law of war, such as the nature of detention of a POW and whether it is stigmatizing.

The week's (and calendar year's) final CAAF argument, following Wise on Wednesday, is United States v. Carruthers, No. 06-0050/AR. The issues in Carruthers are

I. WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION WHEN THE MILITARY JUDGE IMPERMISSIBLY RESTRICTED CROSS-EXAMINATION OF A KEY GOVERNMENT WITNESS REGARDING THE DETAILS OF A CO-CONSPIRATOR'S EXTREMELY FAVORABLE PLEA AGREEMENT; and

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY REFUSING TO GIVE A MANDATORY LENIENCY INSTRUCTION.

With issues like this on tap, and with no additional information about the cases available on line, this will be a good week to take advantage of CAAF's best innovation of the term: posting audio files of the oral arguments its web site.

--Dwight Sullivan