Sunday, January 11, 2009

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is: "WHETHER APPELLANT SUFFERED PREJUDICE, FOR PURPOSES OF ARTICLE 59(a), UCMJ, WHERE THE CHARGE OF RAPE OF A CHILD, WITHDRAWN AND DISMISSED 'WITH PREJUDICE' AT APPELLANT'S FIRST COURT-MARTIAL, WAS REINSTITUTED AT APPELLANT'S REHEARING."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.

13 comments:

Manoel José de Santana(Manoel Limoeiro) said...

My congratulations on your blog. Brazil's Manoel.

Anonymous said...

If the victim impact "evidence" came in at the post-guilt and pre-sentencing phase, why does the CAAF grant say "alleged victim" ... ?

Anonymous said...

Friday's ACCA argument (Gross) was a discussion of jurisdiction and the merits of the Art 13 issue. (The Trial Judge- respondant here- granted 50 days credit for a 3.2 hour delay as the government tried to figure out who was supposed to be on the panel) After the argument the panel left the room, came back five minutes later and denied the writ- Without answering the jurisdiction question. An unremarkable written opinion came out that afernoon.

Anonymous said...

Hey caaflog, any movement on a reconsideration request in Rodriguez?

Anonymous said...

Sgt Weemer's case has been delayed and will not begin this week.

Anonymous said...

We've gone truly international. Welcome Manoel!

Anonymous said...

Nota bene regarding Smead: arguing legislative history to Judge Ryan is slightly less effective than jumping atop counsel's table and proceeding to flap your arms like a chicken while quacking like a duck.

The Cat said...

CAAFlog:

Why not post more on the military commissions (other than in the next week there may not be much left to post)? You are and have always been very professional such that I think you could probably keep most of your "bias" in check, at least to a reasonable degree. And you always put the disclaimer that you were the Chief Defense Counsel for 2 years (and did a great job I might add)(DISCLAIMER: I was a prosecutor there for 2 years).

I think any REASONABLE and PROFESSIONAL individual would not hold it against you; I certainly would not (I may challenge....errrrr....debate you on some stuff, but never hold it against you).

Military Commissions, like them or not, are a part of our military justice history and, for at least the next few days, present. And there are a lot of good debates that have come out about how to prosecute war criminals and hwo the law of war should adapt to address terrorism on the level of armed conflict. I think you do your blog a disservice by leaving them out simply because you may have some built in biases. We all have them no matter what the field. And your previous stints at Navy 45 and now the Air Force? as a civilian appellate defense attorney, why does that not disqualify you on talking about what goes on at CAAF?

So I would like to see any news about MCs that come up, though I understand that may not be nearly as often as what comes up in the court-martial world.

Dew_Process said...

ANON 1728: Good post, good points and I agree.

There is actually some "excitement" at the MilComs that may transcend whatever ultimately happens down there. MJ Henley [of the Martinez and Murphy cases], issued Protective Order # 7, on 18 DEC 08 [its on the KSM file at DefenseLink] and apparently has had second thoughts, and "invited" briefing on the issue of whether it goes too far in expanding the definitions of "classified" information. If you read the PO, you'll see why.

Gov'ts response is due I think at COB today; and Defense later in the week.

Of particular note, the gov't got him to sign the PO ex parte, without any notice to the Defense. That of course has created more hoopla - if DC has appropriate clearances, there's no reason to seek such a grossly expansive PO ex parte.

Stay tuned and I do hope Dwight at least starts a MilCom thread, even if he decides not to post on it, especially since a number of military appellate judges [noted somewhere recently on CAAFlog] are dual-hatted to the CMCR.

Anonymous said...

Gitmo to be closed within Week One. See http://www.guardian.co.uk/world/2009/jan/12/guantanamo-obama-white-house

About time.

Anonymous said...

What's going on with the Martinez case after his capital murder acquittal? More charges preferred or has he been chaptered? Haven't seen anything in the news.

Anonymous said...

Anon 1856 - I "believe" that his enlistment expired while he was in pretrial, and I think he just walked away - errr, probably ran!

Anonymous said...

Anon 08:16pm - just for clarity, we're talking two panels (the C/M and ACCA panel). Hey not everyone reading this is a JAG or former JAG. The ACCA appeals panel took a 5 minute break, then ruled for the defense from the bench, which was unusual (ruling from the bench, not so much ruling for the defense).

Second, Anon 6:55pm - Gitmo will not be closed within a week. see for example: http://www.nytimes.com/2009/01/13/us/politics/13gitmo.html?_r=1&hp
The decision to close Gitmo may be made, and likely the military commissions will disbanded, next week, but Gitmo will still be around for some time yet.