This week in military justice -- 22 February 2009 edition

This is going to be a busy week.

This week at the Supreme Court: Tomorrow the Supremes will issue an order list with the results of Friday's conference. The list will also certainly include denials of the three military petitions (two cert petitions and one rehearing petition) circulated for Friday's conference.

This week at CAAF: CAAF will hear two oral arguments on Wednesday, both in Army cases. The first is in United States v. Gardinier, No. 06-0591/AR, where the granted issue is "WHETHER THE ARMY COURT ERRED WHEN IT FOUND THE MILITARY JUDGE'S ERRONEOUS ADMISSIONS OF EVIDENCE HARMLESS BEYOND A REASONABLE DOUBT." The second case in United States v. Miller, No. 08-0580/AR, where the granted issue is "WHETHER, AFTER FINDING THE EVIDENCE FACTUALLY INSUFFICIENT TO SUPPORT A FINDING OF GUILTY TO CHARGE III AND ITS SPECIFICATION (RESISTING APPREHENSION), THE COURT OF CRIMINAL APPEALS COULD AFFIRM A FINDING OF GUILTY TO A LESSER INCLUDED OFFENSE ON A THEORY NOT PRESENTED TO THE TRIER OF FACT." CAAF's hearing calendar also shows Thursday as an oral argument date, though no cases are scheduled to be heard that day. The end of this week marks the half-way point for CAAF's current term.

This week at the CCAs: NMCCA will hear oral argument on Wednesday in United States v. Garner. The assignments of error to be argued are:

I. APPELLANT COULD NOT PLEAD GUILTY TO A CHARGE OF ATTEMPTED ENTICEMENT OF A MINOR FOR SEXUAL ACTIVITY BECAUSE HE DID NOT TAKE A "SUBSTANTIAL STEP" TO ENGAGE IN ACTUAL SEXUAL ACTIVITY WITH THE PURPORTED MINOR.

II. APPELLANT'S GUILTY PLEAS WERE IMPROVIDENT WHERE THEY WERE BASED ON A SUBSTANTIAL MISUNDERSTANDING AS TO THE MAXIMUM SENTENCE HE FACED.

III. WHETHER THE APPELLANT WAS CAPABLE OF KNOWINGLY PLEADING GUILTY TO CHARGE II, GIVEN THAT IT ENCOMPASSES VIOLATIONS OF THREE CRIMINAL STATUTES AND THAT THE MILITARY JUDGE EXPLAINED TO THE APPELLANT THAT HE WAS PLEADING GUILTY UNDER BOTH CLAUSE 2 AND 3 OF ARTICLE 134, THE LATTER AS A LESSER INCLUDED OFFENSE. See United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008).

IV. WHETHER WORDS ALONE ARE SUFFICIENT TO SATISFY THE “SUBSTANTIAL STEP” ELEMENT OF AN ATTEMPT, IF THEY AMOUNT TO "GROOMING." Compare United States v. Gladish, 536 F.3d 646 (7th Cir. 2008), with United States v. Goetzke, 494 F.3d 1231 (9th Cir. 2007).

AFCCA will hear oral arguments in two cases this week. United States v. Valois, No. ACM 36841, is scheduled for Wednesday. Valois involves a second lieutenant convicted of murdering his 5-week-old son. The three issues on appeal are: (1) "WHETHER THE EVIDENCE IS LEGALLY AND FACTUALLY SUFFICIENT TO SUPPORT THE FINDINGS OF GUILTY OF MURDER"; (2) WHETHER THE MILITARY JUDGE ABANDONED AN IMPARTIAL ROLE AND SHOULD HAVE RECUSED HIMSELF UNDER R.C.M. 902(b)(3), AFTER MAKING MULTIPLE STATEMENTS REFLECTING THAT HE DETERMINED GUILT ON AN ESSENTIAL ELEMENT BEFORE ALL EVIDENCE HAD BEEN PRESENTED DURING FINDINGS"; AND (3) "WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR AS A MATTER OF LAW BY REFUSING TO CONSIDER LENIENCY IN DETERMINING A SENTENCE."

AFCCA is scheduled to hear oral argument in United States v. Roach, No. ACM S31143 (frev), on Friday. Two issues will be orally argued. First, "HAS APPELLANT'S DUE PROCESS RIGHT TO REASONABLY PROMPT POST-TRIAL REVIEW BEEN DENIED BY THE PRESUMPTIVELY UNREASONABLE DELAY IN THIS APPEAL ARISING FROM THIS COURT'S ORIGINAL LEGALLY ERRONEOUS OPINION THAT IT ISSUED IN AN ATTEMPT TO 'GRAB POWER' FROM THE COURT OF APPEALS FOR THE ARMED FORCES?" The second issue to be argued in whether the Air Force Court should grant the government's motion to submit an affidavit from a member of the panel that originally decided the appellant's case discussing the original panel's consideration of the case. [DISCLAIMER: I will be presenting oral argument for the defense in Roach.]