Daily journal update

There was some significant CAAF daily journal activity last week that I didn't have the capacity to cover from the road. So I'm playing catch-up this weekend.

CAAF granted plenary review in two cases, both from the Air Force. In United States v. Miller, CAAF granted review of:

WHETHER APPELLANT'S CONVICTION OF ATTEMPTED INDECENT LIBERTIES WITH A CHILD IS LEGALLY SUFFICIENT WHEN APPELLANT WAS NEVER IN THE PHYSICAL PRESENCE OF THE PURPORTED CHILD, BUT WAS CONVICTED ON THE BASIS OF HIS SENDING HER THROUGH THE INTERNET A CONTEMPORANEOUS VIDEO OF HIS PERFORMING A SOLITARY SEXUAL ACT.

United States v. Miller, __ M.J. ___ No. 08-0307/AF (C.A.A.F. June 24, 2008). AFCCA's decision in the case is at 65 M.J. 845 (A.F. Ct. Crim. App. 2007).

The second granted issue is: "WHETHER THE MILITARY JUDGE ERRED BY ALLOWING EVIDENCE OF LEGAL PORNOGRAPHY AND SEXUAL ACTS WITH HIS WIFE." United States v. Goodin, __ M.J. ___, No. 08-0355/AF (C.A.A.F. June 24, 2008). A literal reading of that issue would mean that the sexual acts were with the military judge's wife. Presumably that would have led the military judge to recuse himself and the actual issue is whether the military judge should have allowed the admission of evidence about the accused's sexual acts with the accused's wife. AFCCA's unpublished decision in the case is available here. United States v. Goodin, No. ACM 36266 (A.F. Ct. Crim. App. Dec. 19, 2007).

Also this week CAAF continued its recent practice of deciding some cases on the basis of the briefs without holding oral argument. On 2 April 2008, CAAF granted review of "WHETHER THE MILITARY JUDGE FAILED TO ESTABLISH THAT APPELLANT TOOK ANY SUBSTANTIAL STEP BEYOND MERE PREPARATION TO CROSS THE CRIMINALITY THRESHOLD OF 'ATTEMPT,' THUS RENDERING THE PLEA OF GUILTY TO CHARGE II, SPECIFICATION 2, IMPROVIDENT." United States v. Rowe, __ M.J. ___, No. 07-0813/NA (C.A.A.F. Apr. 2, 2008). CAAF ordered the parties to file briefs. On 24 June 2008, which would have been quite soon after briefing was complete, CAAF resolved the case: "On further consideration of the granted issue, __ M.J. __ (C.A.A.F. April 2, 2008), and the briefs of the parties, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed." United States v. Rowe, __ M.J. ___, No. 07-0813/NA (C.A.A.F. June 24, 2008) (summary disposition).

And CAAF granted minor relief concerning the wording of a specification, but no relief as to sentence, on the basis of the petition for grant of review in United States v. Owens, __ M.J. ___, No. 08-0173/AR (C.A.A.F. June 24, 2008) (summary disposition).

CAAF also granted review of a Bartlett trailer, see United States v. Bartlett, No. 07-0636/AR, but ordered counsel not to brief it. United States v. Liriano, __ M.J. ___, No. 08-0225/AR (C.A.A.F. June 25, 2008).

The online daily journal is updated only through Wednesday, 25 June, so it's possible that this week we will learn of still more interesting daily journal developments from last week.