Significant daily journal updates

In a move certain to make the No Man salivate like a Pavlovian dog, CAAF granted review of an Apprendi issue in United States v. Donnelly, __ M.J. ___, No. 07-0148/AR (C.A.A.F. June 5, 2007) (order). Here's the issue:

WHETHER THE ACTION OF THE COURT OF CRIMINAL APPEALS IN AMENDING SPECIFICATIONS 2 AND 3 OF CHARGE I FROM VIOLATIONS OF ARTICLE 134, UCMJ, CLAUSE 3 (CRIMES AND OFFENSES NOT CAPITAL) TO VIOLATIONS OF ARTICLE 134, UCMJ, CLAUSE 2 (SERVICE DISCREDITING CONDUCT) ADDS AN ELEMENT TO THE OFFENSES IN CONTRAVENTION OF APPRENDI v. NEW JERSEY, 530 U.S. 466 (2000), JONES v. UNITED STATES, 526 U.S. 227 (1999), AND SCHMUCK v. UNITED STATES, 489 U.S. 705 (1989).

But back away from the keyboard slowly with your hands up, No Man, and stop writing that amicus brief. CAAF ordered no briefs filed, which suggests it is treating Donnelly as a trailer to United States v. Medina, __ M.J. ___, No. 07-0096/AR (C.A.A.F. Apr. 27, 2007) (order).

But CAAF did order briefs in two Marine Corps cases. The granted issues in United States v. White, __ M.J. ___, No. 07-0067/MC (C.A.A.F. June 5, 2007) (order) are:

WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT'S PLEA TO UNPREMEDITATED MURDER UNDER ARTICLE 118(3), UCMJ, WHERE EVIDENCE WAS INTRODUCED BY BOTH APPELLANT AND AN EXPERT THAT, AT THE TIME OF THE OFFENSE, APPELLANT DID NOT KNOW THAT HIS ACTIONS WOULD CAUSE BODILY HARM OR DEATH.

WHETHER APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS COUNSEL ADVISED HIM TO PLEAD GUILTY, IMPROVIDENTLY AND AGAINST HIS WISHES.

Of even greater interest is the issue in United States v. Pack, __ M.J. ___, No. 07-0085/MC (C.A.A.F. June 5, 2007) (order). Now this issue could end up at the Supreme Court. CAAF will essentially be determining whether Crawford v. Washington reversed Maryland v. Craig, 497 U.S. 836 (1990):

IN LIGHT OF CRAWFORD v. WASHINGTON, 541 U.S. 36 (2004), WAS APPELLANT DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONT HIS ACCUSER WHEN THE MILITARY JUDGE ALLOWED MP TO TESTIFY FROM A REMOTE LOCATION VIA ONE-WAY CLOSED-CIRCUIT TELEVISION?

Let's look at the lineup that decided Maryland v. Craig. In the majority were Justice O'Connor, who wrote the majority opinion, Chief Justice Rehnquist, and Justices White, Blackmun, and Kennedy. In dissent was the unlikely foursome of Justice Scalia, who wrote the dissenting opinion, and Justices Brennan, Marshall, and Stevens. So let's assume that you start with two votes -- Scalia and Stevens -- for the proposition that Craig should be overruled. Justice Thomas is likely to agree. That means that the vote of either Chief Justice Roberts or Justice Alito would be sufficient to grant cert and the votes of both would be sufficient to reverse Craig.

So there you have it -- if the defense loses at CAAF, Pack will be the next CAAF case reviewed by the Supremes. But if the defense prevails, don't expect to see the S.G. seeking cert, for fear of losing Craig.

(The opinions below in both White and Pack were unpublished and both were by the triumvirate of Judges Harty, Thompson and Kelly.)