This week in military justice -- 11 January 2009 edition

This week at the Supreme Court: In the wake of Friday's filing of the SG's merits brief in Denedo, we are unaware of any anticipated military justice developments at SCOTUS this week.

This week at CAAF: CAAF will hear two oral arguments tomorrow. The granted issue in United States v. Smead, No. 08-0376/MC, is: "WHETHER APPELLANT SUFFERED PREJUDICE, FOR PURPOSES OF ARTICLE 59(a), UCMJ, WHERE THE CHARGE OF RAPE OF A CHILD, WITHDRAWN AND DISMISSED 'WITH PREJUDICE' AT APPELLANT'S FIRST COURT-MARTIAL, WAS REINSTITUTED AT APPELLANT'S REHEARING." The granted in issue in United States v. Stephens, No. 08-0589/AF, is: "WHETHER THE MILITARY JUDGE ERRED BY ALLOWING THE FATHER OF THE ALLEGED VICTIM TO TESTIFY AS EVIDENCE IN AGGRAVATION, OVER DEFENSE OBJECTION, AS TO THE IMPACT ON THE ALLEGED VICTIM OF THE INVESTIGATION AND COURT-MARTIAL." (I'll be arguing for the appellant in Stephens.)

This week at the CCAs: On Thursday, Panel 3 of ACCA is scheduled to hear oral arugment in United States v. Littleton, No. ARMY 20080481. (I'm assuming the case name is Littleton. The link on ACCA's oral argument web page calles the case "US v. Bryan," but Bryan appears to be the appellant's first, not last, name.) The issues in Littleton are: "WHETHER APPELLANT WAS IMPROPERLY CHARGED AND FOUND GUILTY IN THE DISJUNCTIVE," and "WHETHER THE MILITARY JUDGE MADE VAGUE AND AMBIGUOUS FINDINGS AS TO THE CHARGE AND SPECIFICATIONS FOR VIOLATIONS OF ARTICLE 134, PRECLUDING APPELLATE REVIEW BY THIS COURT." I also see on ACCA's web page that it snuck in an oral argument last Friday but didn't appear to post notice of that until last Wednesday: United States v. Gross, No. MISC ARMY 20081049, a Government petition for extraordinary relief case, where the issue was whether "THE MILITARY JUDGE ACTED WITHOUT LEGAL AUTHORITY IN AWARDING FIFTY DAYS OF ARTICLE 13 CREDIT WHERE NO VIOLATION OF ARTICLE 13, UCMJ, OCCURRED. " (Presumably the actual issue in the case was whether a violation of Article 13--which prohibits pretrial punishment--did or didn't occur.)

I believe that on Tuesday, the United States Court of Military Commission Review will hear oral argument in United States v. Jawad. Normally I don't post about military commission matters, but there's overlap between the argument and the military appellate system because two of the judges on the panel hearing Jawad are also CCA judges: Chief Judge O'Toole of the Navy-Marine Corps Court and Senior Judge Francis of the Air Force Court, who is dual-hatted as the Court of Military Commission Review's deputy chief judge. The reason I write "I believe" that the oral argument will be on Tuesday is that, with the kind of lack of precision that's been demonstrated all too often by the military commission system, the Court of Military Commission Review's order granting oral argument provides that "[o]ral argument will take place at 10:00 a.m." at the Federal Circuit's courtroom, but doesn't indicate what date at 10 a.m. the argument will be heard. There appear to be a total of 12 CCA judges who are dual- hatted as CMCR judges. (NMCCA: O'Toole, Price, Feltham, Geiser; ACCA: Conn, Holden, Sullivan, Zolper; AFCCA: Francis, Brand, Heimann, Thompson). I write that there "appear" to be 12 dual-hatted CCA judges because the panel assignment list on the Court of Military Commission Review's web site lists those 12 while the "Judges Currently Serving on USCMCR" link on the court's web site lists only 6 of them. (DISCLAIMER: I was the military commission system's chief defense counsel for two years and have certain open and notorious biases concerning the system--which is one reason I normally don't post about military commission matters.)

This week at the court-martial trial level: Based on press reports, it appears that the court-martial of Sgt Ryan Weemer, USMC, is scheduled to start tomorrow. This is a companion case to United States v. Nazario, which was tried as a MEJA case in the United States District Court for the Central District of California and which resulted in a complete acquittal. During that trial, Sgt Weemer was one of two Marines jailed for contempt for refusing to testify. The related case of United States v. Sgt Jermaine Nelson was scheduled to begin last week, but was pushed back until 16 February because Judge Meeks granted a defense request for the appointment of an expert.

As always, if anyone is aware of any other significant military justice developments or has updates to anything we have noted, please let us know. You can reach us at caaflog@caaflog.com.