Sunday, December 14, 2008

This week in military justice -- 14 December 2008 edition

After a slow week, the coming week in military justice promises to be quite eventful.

This week at the Supreme Court: We are unaware of any anticipated military justice developments at the Supreme Court this week. But we do invite a report from the Kabul Klipper concerning the present whereabouts of the Golden CAAF.

This week at CAAF: CAAF is scheduled to hear two arguments on Tuesday and two more on Wednesday. Tuesday leads off with United States v. Clayton, No. 08-0417/AR. The principal issue in Clayton is "WHETHER THE CIVILIAN POLICE DRUG SEIZURE REPORT IN THIS CASE IS A REPORT SETTING FORTH 'MATTERS OBSERVED BY POLICE OFFICERS . . . ACTING IN A LAW ENFORCEMENT CAPACITY,' AND, IF SO, WHETHER IT WAS PROPERLY ADMITTED UNDER M.R.E. 803(6) (BUSINESS RECORD EXCEPTION), WHEN IT WOULD NOT BE ADMISSIBLE UNDER M.R.E. 803(8) (PUBLIC RECORDS EXCEPTION)." I can't find ACCA's opinion in the case anywhere online.

Clayton will be followed by a second Army case, United States v. Dean, No. 08-0431/AR. The issue in Dean is "WHETHER THE MILITARY JUDGE ERRED BY PERMITTING THE CONVENING AUTHORITY TO WITHDRAW FROM HIS PRETRIAL AGREEMENT WITH APPELLANT DESPITE APPELLANT BEGINNING PERFORMANCE OF PROMISES CONTAINED IN THE AGREEMENT." ACCA's Dean opinion also appears to be UA.

Wednesday's arguments will begin with a Navy case, United States v. Collier, No. 08-0495/NA. The issue there is "WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY EXCLUDING, PURSUANT TO M.R.E. 403, RELEVANT EVIDENCE OF A PRIOR HOMOSEXUAL RELATIONSHIP BETWEEN APPELLANT AND A CENTRAL GOVERNMENT WITNESS OFFERED BY THE DEFENSE TO SHOW BIAS AND MOTIVE TO MISREPRESENT ON THE PART OF THE GOVERNMENT WITNESS." NMCCA's unpublished opinion in the case is available here. United States v. Collier, No. NMCCA 200601218 (N-M. Ct. Crim. App. Feb. 21, 2008).

CAAF's last argument for calendar year 2008 will be in United States v. Campos, No. 08-0409/NA. The issue there is "WHETHER IT WAS PLAIN ERROR FOR THE MILITARY JUDGE TO ADMIT AT SENTENCING A STIPULATION OF EXPERT TESTIMONY PERTAINING TO SEX OFFENDER TREATMENT IN MILITARY CORRECTIONAL FACILITIES WHERE THE EXPERT, WHO DID NOT PERSONALLY EVALUATE APPELLANT, OPINED GENERALLY ABOUT MINIMAL AND OPTIMAL TERMS OF CONFINEMENT FOR A PERSON DETECTED OF POSSESSING CHILD PORNOGRAPHY." NMCCA's unpublished opinion in the case is available here. United States v. Campos, No. NMCCA 200602523 (N-M. Ct. Crim. App. Jan. 17, 2008).

This week at the CCAs: ACCA will hear two oral arguments this week. On Wednesday, ACCA will hear oral argument in United States v. Huntzinger, No. ARMY 20060976. The issues in that case are "WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE MOTION FOR ASSISTANCE FROM AN INDEPENDENT EXPERT COMPUTER FORENSIC ANALYST," and "WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED THE DEFENSE MOTION TO SUPPRESS EVIDENCE OBTAINED IN VIOLATION OF APPELLANT’S FOURTH AMENDMENT RIGHTS AND MILITARY RULES OF EVIDENCE 315 AND 316."

On Thursday, ACCA will hear oral argument in United States v. Hotrum, No. ARMY 20060649. The three issues in Hostrum are: (1) "WHETHER THE MILITARY JUDGE ERRED IN ADMITTING APPELLANT’S ALLEGED STATEMENTS WHEN THE STATEMENTS WERE NOT CORROBORATED AS REQUIRED BY MIL. R. EVID. 304(g)"; (2) "WHETHER THE EVIDENCE PRODUCED AT TRIAL IS BOTH FACTUALLY AND LEGALLY SUFFICIENT TO SUPPORT APPELLANT'S CONVICTION FOR CHARGE II"; and (3) "WHETHER THE MILITARY JUDGE ERRED IN ADMITTING APPELLANT'S MARCH 25TH STATEMENT WHERE THE STATEMENT WAS INVOLUNTARY UNDER MIL. R. EVID. 304(c)(3) AND OBTAINED IN VIOLATION OF APPELLANT'S 5TH AMENDMENT, U.S. CONST., AND ARTICLE 31, UCMJ, RIGHTS."

This week at the trial level:
We aren't aware of any significant events expected at the trial level this week.

As always, if you are aware of any other military justice developments or upcoming events, please drop us a line at caaflog@caaflog.com.

And, finally, a new (no doubt one-time) feature:

This week in mongrel doggerel: With apologies to Clement Clarke Moore and anyone who has actually read this far into this post, here's my very bad seasonal CAAF poem:

'Tis the week before Christmas
When at CAAF's courthouse,
Defense counsel they'll rise
And loudly they'll grouse
About findings and punishments unfair
Seeking to win a reversal, so rare.

Counsel will rise to speak with dread,
Wondering what questions will pop into judges' heads.
Is it a softball or is it a trap?
Should you answer directly or start to dance tap?

But answering a question with tap dancing chatter
May provoke the judges to tear you to tatters.
And counsel must be careful to make no concession too rash
Or risk giving opposing counsel a chance to talk trash.

Instead counsel's syllogistic reas'ning must flow,
But above all, it's the record that counsel must know.
Lest counsel's ears hear the sound they most fear,
The sound of a judge exclaiming a jeer.

Counsel must not rely on tiresome shtick,
Or arguments that brand them a law heretic.
Or you will have no one but yourself to blame,
As you try to parry each of the judges by name.

When answering hypos from Effron, the Chief,
Saying, "But that's not this case" will only bring grief.
Answers to Judge Baker must be sufficiently granular
To avoid having an off day, like Ferris Bueller.
If your argument runs counter to words' plain meaning,
In your opponent's direction, Judge Erdmann 'll be leaning.
If your answers fail to impress Judge Stucky,
He'll leave no doubt he finds your argument kooky.
And to avoid an appellate affliction,
You must convince Judge Ryan of the Court's jurisdiction.

When you've said all there's to say, just have a seat,
Giving the judges your opposing counsel to beat.
And please don't just repeat what was in your epistle
For that is sure to make an appellate judge bristle.

It all comes to an end with the glowing red light.
Happy holidays to all, and to all a good night.

1 comment:

Gene Fidell said...

The Supreme Court today denied certiorari in NIMJ's FOIA case involving communications between DoD and those outside the government whom Secretary Rumsfeld informally consulted about military commission rules.