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.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.
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.
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 email@example.com.