Sunday, November 30, 2008

This week in military justice -- 30 November 2008 edition

This week at the Supreme Court: Two military cert petitions have been distributed for Friday's conference, the pro se IFP cert petition in Lucero v. United States, No. 08-7196, and the Air Force Appellate Defense Division's cert petition in Seawell v. United States, No. 08-588. Both appear headed for certain denial.

This week at CAAF:
CAAF will hear four oral arguments this week. On Tuesday, it will hear arguments in Brown v. United States, No. 08-0261/AR. CAAF's web site explains: "Granted issue questions whether the phrase 'with intent unlawfully to obtain an advantage, to wit: sexual relations,' in the specification of charge II states the offense of extortion in light of the provision in the Manual for Courts-Martial that provides that 'an intent to make a person do an act against that person's will is not, by itself, sufficient to constitute extortion.'"

Tuesday's second argument will be in United States v. McCracken, No. 08-0440/MC. The issues in McCracken are: "(1) whether the lower court erred by affirming a lesser-included offense based on a theory of criminality not presented by the Government at trial; and (2) whether the lower court erred in reassessing Appellant's sentence instead of remanding the case for a sentence rehearing."

On Wednesday, CAAF will hear argument in United States v. Gladue, No. 08-0452/AF. The issue there is "whether the lower court erred when it found that a provision in Appellant's pretrial agreement to 'waive all waivable motions' was an express waiver that bars Appellant from asserting any claims of multiplicity or multiplication of charges on appeal."

Wednesday's second argument will be in United States v. Rogers, No. 08-0518/AF. The issue in Rogers is "whether the military judge erred in denying Appellant's motion to suppress his hair test results."

This week at the CCAs: On Wednesday, the Navy-Marine Corps Court will hear en banc oral argument in United States v. Crotchett on these two issues:


WHETHER THE MILITARY JUDGE ERRED IN HOLDING THAT ARTICLE 120, UCMJ, IS UNCONSTITUTIONAL AS APPLIED BECAUSE, WHEN THE ACCUSED ASSERTS THE AFFIRMATIVE DEFENSE OF CONSENT, ARTICLES 120(c)(2), 120(r) and (t), AND R.C.M. 916, COMBINE TO IMPERMISSIBLY SHIFT THE BURDEN OF PROOF TO THE ACCUSED REGARDING THE SECOND ELEMENT OF THE OFFENSE OF AGGRAVATED SEXUAL ASSAULT.

IN THE EVENT ARTICLES 120(c)(2), 120(r) and (t), AND R.C.M. 916, COMBINE TO IMPERMISSIBLY SHIFT THE BURDEN OF PROOF TO THE ACCUSED REGARDING THE SECOND ELEMENT OF THE OFFENSE OF AGGRAVATED SEXUAL ASSAULT, IS ARTICLE 120 SEVERABLE, SUCH THAT ONE OF MORE OF THE CITED SECTIONS MAY SURVIVE CONSTITUTIONAL SCRUTINY.
This week at the trial level: Evidence on the merits is expected to close tomorrow in the Martinez capital court-martial at Fort Bragg. Closing arguments are expected on Tuesday. If the members unanimously find Staff Sergeant Martinez guilty of at least one premeditated murder, then the case will proceed capitally on sentencing, where the authorized sentences will be death, confinement for life without eligibility for parole (LWOP), and confinement for life. If Staff Sergeant Martinez is found guilty of at least one premeditated murder but is not unanimously found guilty of either premeditated murder, then the authorized sentences will be LWOP and confinement for life. If he is not found guilty of both premeditated murders but is found guilty of an LIO or some other charge, then the case will proceed to sentencing with no mandatory minimum. And, of course, if he is found not guilty of all charges and specifications, then the case is over.

As always, please let us know if you're aware of other cases that should be included in our "This week in military justice" segment. You can reach us by e-mail at caaflog@caaflog.com.

7 comments:

Dew_Process said...

Seawell COULD be interesting - that's where Judge Ryan began her assault on the Court's jurisdiction:
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Not so long ago the Supreme Court reaffirmed a fundamental principle of law: this Court's jurisdiction is strictly circumscribed to act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals. Clinton v. Goldsmith, 526 U.S. 529, 531, 534 (1999) (citing Article 67(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(c) (2000)). In addressing the limits of this Court's jurisdiction, the Supreme Court further recognized the power of this Court to compel adherence to its own judgment when a military authority attempted to alter a judgment by revising a court-martial finding or sentence to increase the punishment, contrary to the specific provisions of the UCMJ. Goldsmith, 526 U.S. at 536.

In light of this precedent, it is unclear to me whether and how this Court has jurisdiction under Article 67(c), UCMJ, to take action with regard to something that is not itself part of the findings or adjudged sentence or an alteration of the judgment. Goldsmith, 526 U.S. at 536.

65 M.J. 301 (2007).

Notably, the SG didn't file any opposition to the Cert Petition, but I don't know - perhaps you do Dwight - if the government pursued Judge Ryans' "suggestion" as to jurisdiction on the remand and then subsequent trip back to the CAAF?

If not, it puts an interesting twist on Denedo.... But, regardless of Denedo, here Ryan was definitely off the mark as Seawell's whole issue was an illegal increase in his sentence.

If the Supreme's deny cert, it would be interesting to see a writ of coram nobis filed or perhaps an action the the Court of Claims, and see how the DoJ responds....

Anonymous said...

My bet is that the second issue in McCracken stands a decent chance of changing appellate litigation at the CCA level drastically.

Anonymous said...

I heard the McCracken oral argument and change my prediction. I do not think CAAF will get to issue 2 as it will set aside the CCA opinion rendering the second issue moot.

Dew_Process said...

Anon 0238: If you get a moment, please elaborate for us. Was CAAF focusing on the "lack of notice" issue or something else??

Thanks!!

Anonymous said...

Only about 5 minutes of the defense argument and 0 minutes of the Govt argument talked about issue number two. It appeared to me by the judges' questions that they were leaning toward the defense on issue 1 as their questions seemed to suggest that the Govt had to prove why some previous precedent did not apply. The most interesting exchange was when one of the judges asked government counsel why he didn't argue that a previous CAAF should be overruled. Govt counsel indicated (to much laughter) that his presence in court today was basically that. I'm guessing it was not expressly stated in the brief.

And to answer the direct question, yes, the notice, or lack thereof, was the main focus. Govt suggested that theory of the guess was immaterial as long as there was any evidence which could support the findings, as modified, by the CCA. Remember that Appellant was charged with rape, members found him guilty of indecent assault, and the CCA set that aside and instead found him guilty of a consensual sex offense of indecent acts. I still think the more interesting issue, mil jus writ large, is whether the CCA could (or should) reassess a members' case where the sentencing landscape was so dramatically different. I'm of the mind that CCA judges certainly are able to reassess MJ alone sentences, but am weary that they can do so with the degree of precision required in members' cases.

Dew_Process said...

Anon 0638: Thanks VERY much! Your analysis is informative.

And, I agree with you - if sentencing is by members, especially here where the "end result" is a consensual act, a re-sentencing should be by members, otherwise the Accused is forfeiting his/her forum election by virtue of the fact of "prevailing" on appeal.

dreadnaught said...

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