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Tuesday, November 18, 2008
Two more oral arguments scheduled
On Sunday, we took a look ahead at CAAF's oral argument schedule here. Though not yet reflected on the CAAF web site, on Maonday CAAF scheduled at least two additional oral arguments: Smead and Stephens, both to be heard on 12 January. In Stevens, if counsel take the maximum allotted time to submit each of their briefs, the reply brief will be filed just two working days before the argument. Can one of our Army Lurkers tell us if Miller was scheduled as well?
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NMCCA has also scheduled oral argument for 3 Dec 2008 in the case of US v Crotchett which is up on Art. 62 appeal after the trial judge ruled that the statute unconstitutionally shifted the burden to proof to the accused.
The issues specified by the court are:
I. 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.
II. 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 OR MORE OF THE CITED SECTIONS MAY SURVIVE CONSTITUTIONAL SCRUTINY.
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