This week in military justice -- 21 June 2009 edition

This week at the Supremes: There are no expected military justice developments at the Supremes this week.

This week at CAAF: CAAF will hold oral argument in the twin Aviano cases of United States v. Ashby, No. 08-0770/MC, and United States v. Schweitzer, No. 08-0746/MC, on Wednesday. The many issues in the cases are synopsized here. The argument will be a melancholy event since Judge Everett was to have sat on the court for both cases. I don't know who will sit in his place; it could be another CAAF senior judge, acting Chief Judge Erdmann could ask Chief Justice Roberts to designate an Article III judge to sit with CAAF pursuant to Article 140(f), or the court could sit with just four judges, which would give an advantage to the government. (If just four judges sit, a tie vote affirms the lower court's judgment, which would mean that the government would need only two votes to prevail rather than three; essentially, the missing judge is spotted to the party that prevailed below, in these cases the government.)

This week at the CCAs: On Thursday, NMCCA will set en banc to hear the government's second Article 62 appeal in the case of United States v. Wuterich. The issues to be argued deal with the existence of a qualified reporter's privilege. The court will hear argument from counsel for the United States and for CBS. Counsel for SSgt Wuterich (of which I am one) haven't taken a position on the issues being argued and respectfully declined NMCCA's offer to let them participate in the argument. A synopsis of the case is available here. On Friday, AFCCA will hear oral argument in United States v. Streete. The issues to be argued are:

I. WHETHER EITHER THE MILITARY JUDGE OR APPELLANT'S TRIAL DEFENSE COUNSEL ALLOWED SPILLOVER TO UNDULY PREJUDICE APPELLANT'S RIGHT TO A FAIR TRIAL.

II. WHETHER APPELLANT'S SENTENCE THAT INCLUDED EIGHT YEARS CONFINEMENT AND A DISHONORABLE DISCHARGE IS HIGHLY EXCESSIVE.

III. WHETHER APPELLANT'S CONVICTION TO ADDITIONAL CHARGE II AND ITS SPECIFICATION, ALLEGING THE VIOLATION OF A "NO CONTACT" ORDER IS LEGALLY AND FACTUALLY SUFFICIENT.