Three new issues

Just as Mr. DeCicco indicated yesterday, today's daily journal update included three orders from yesterday granting review and ordering briefs. All three are Army cases.

Here is the first, and most interesting, issue:

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT A DETERMINATION THAT APPELLANT'S STATEMENTS TO AN UNDERCOVER NCIS AGENT ON THE INTERNET WERE EITHER DETRIMENTAL TO GOOD ORDER AND DISCIPLINE OR OF A NATURE TO BRING DISCREDIT UPON THE ARMED FORCES WHEN THE MILITARY NEXUS REFLECTED IN THE RECORD CONSISTED OF APPELLANT'S REFERENCE TO BEING A "US ARMY PARATROOPER," AND HIS STATEMENTS RAISE A SIGNIFICANT ISSUE UNDER THE FIRST AMENDMENT.

United States v. Wilcox, __ M.J. ___, No. 05-0159/AR (C.A.A.F. Sept. 6, 2007).

Sacramentum provides the following helpful synopsis of the facts in Wilcox:

The issue before the court in Wilcox concerns an accused who communicated with an undercover policeman about his pro-white beliefs. Appellant referred the undercover policeman to pro-white activist literature. After remand by CAAF, the ACCA held that "a rational trier of fact could have reasonably determined appellant's statements were anti-government and disloyal, advocated extreme racial intolerance, and, under the circumstances of this case, were prejudicial to good order and discipline and service discrediting." Appellant ended a chat session with the following words: "[B]e white, act white, think white,[ and] may GOD be with you." The sole nexus to the military is the fact that in his AOL profile, the appellant claimed he was a U.S. Army paratrooper and a pro-white activist.

CAAF had previously reviewed and remanded PFC Wilcox's case. United States v. Wilcox, 62 M.J. 456, 457 (C.A.A.F. 2006). That remand produced this opinion from ACCA: United States v. Wilcox, No. ARMY 20000876 (A. Ct. Crim. App. Dec. 22, 2006).

Here are the other two issues that CAAF granted yesterday:

WHETHER APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL WHEN THE MILITARY JUDGE EXCLUDED THE PUBLIC FROM THE COURTROOM WHEN THE VICTIM, BP, TESTIFIED ON THE MERITS.

United States v. Ortiz, __ M.J. ___, No. 07-0555/AR (C.A.A.F. Sept. 6, 2007).


WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT'S GUILTY PLEAS TO SPECIFICATIONS 1 AND 2 OF CHARGE I, AGGRAVATED ASSAULT, WHERE APPELLANT DID NOT ADMIT FACTS THAT OBJECTIVELY SUPPORTED HIS PLEAS DURING THE PROVIDENCE INQUIRY, AND INTRODUCED EVIDENCE THAT IS SUBSTANTIALLY INCONSISTENT WITH HIS PLEAS DURING PRESENTENCING.

United States v. Dacus, __ M.J. ___, No. 07-0612/AR (C.A.A.F. Sept. 6, 2007).

Sacramentum reports that the ACCA web site doesn't include the opinions below in either Ortiz or Dacus.