Friday, February 27, 2009
Thursday, February 26, 2009
Sorry, but that means no winner in our latest CAAFlog contest.
While Mr. Adolph received this relief only after having been unconstitutionally confined by military authorities for 55 days with no indictment or preferral of charges, without the bail hearing to which civilians are entitled under the United States Constitution, and only after having filed a petition for a writ of habeas corpus, the fact remains that Mr. Adolph has now obtained all the relief he sought in his Petition and Amended Petition. Accordingly, Mr. Adolph hereby dismisses his Amended Petition for Writ of Habeas Corpus without prejudice.
This is a significant development, and a clear break from the Bush administration’s policy with respect to al-Marri.
As readers of this blog are well aware, the Supreme Court had taken up the al-Marri case, and is currently scheduled to hear his case this spring.
Recall that President Obama issued a series of Executive Orders during his first week in office. One aspect of that flurry of orders required an analysis of the al-Marri case. If the news stories are true---that he is about to be indicted---it appears that analysis concluded that he could be safely tried in federal district court.
Many of us who have been closely involved in detention-related matters, both inside and outside of the government, are not surprised at this development. Just yesterday, I mentioned at a panel event at the National Press Club that I believed that the Obama Administration would attempt to resolve the al-Marri case before it was argued before the Court.
Al-Marri’s attorney, Jonathan Hafetz, now with the ACLU (formerly with the Brennan Center) told the Washington Post (in the article linked above) that the decision to charge his client “is an important step in restoring the rule of law.” He added, “But it is vital that the Supreme Court hear the case because it must be made clear once and for all that indefinite military detention of persons’ arrested in the U.S. is illegal and that this never happens again.”
As stated above, al-Marri is currently detained in the Navy brig in Charleston, South Carolina. Once indicted, al-Marri would presumably be brought to a federal facility in Illinois, where his conditions of detention would be different from those he enjoys in the brig.
For those interested in some of the evidence allegedly in the possession of the government on al-Marri, take a look at the previously-classified Declaration of Mr. Jeffrey N. Rapp, Director, and Joint Intelligence Task Force for Combating Terrorism, found here.
If charged with material support for terrorism (as news outlets are suggesting he will be) and convicted, al-Marri could face a sentence of up to life in prison.
Ironically, if acquitted of all charges in federal district court, and the U.S. Supreme Court hears his case, and the Court upholds the Fourth Circuit’s opinion, al-Marri might find himself right back in military detention as an unlawful enemy combatant.
Wednesday, February 25, 2009
Last year, in Kennedy v. Louisiana, the Supreme Court held that the death penalty for the crime of child rape always violates the Eighth Amendment. Writing for a five-justice majority, Justice Kennedy based his opinion partly on the fact that 37 jurisdictions – 36 states and the federal government – did not allow for capital punishment in child rape cases. In reality, however, Congress and the President specifically authorized the use of capital punishment in cases of child rape under the Uniform Code of Military Justice (UCMJ) in the National Defense Authorization Act of 2006, as reported first by Col. Dwight H. Sullivan in his blog and later by the New York Times. . . .
See the full set of questions and the nominee's answers here.
Spinner: "The tragedy resulted not so much by design but rather the working of fear, danger and madness attendant on many combat operations," Spinner said in his closing arguments.
Grace: "The defense can't just stand there and throw their arms up and say: 'We were protecting ourselves from future harm,'" Army Capt. Derrick Grace, the lead prosecutor, said, adding that the killings were the result of a breakdown of discipline and moral responsibility.
We also learned yesterday that the Army dropped all charges against one of Leahy's former co-accused, Sgt. Charles Quigley, see Stars and Stripes report here. As the story notes, apparently the Army had been pressing forward with a court-martial, scheduled to begin yesterday, in spite of indications that Quigley was not involved and his assistance in the investigation (including wearing a wire in a meeting with some of his co-accused). What turned the tide, and resulted in the dismissal, was the testimony of Quigley's boss, SSgt Jess Cunningham, that Quigley was not involved. Quigley will reportedly, WaPo report here, face Captain's Mast (Art. 15, for the unseaworthy) for not reporting the incident.
Tuesday, February 24, 2009
Judge Tatel's presentation is called, "Practice Before the U.S. Court of Appeals for the District of Columbia."
Judge Downey's presentation is called, "Lessons on a Second Career Spent in Trial Court."
And it looks like Professor Harris's presentation on racial profiling swapped times with the panel on Afghanistan rule of law.
Macomber presents the narrow legal question of "whether the military judge correctly ruled that the search authority had a substantial basis for determining that probable cause existed." Id., slip op. at 10. Yes, the majority ruled in a highly case-specific opinion. Id., slip op. at 13-18. No, Judge Ryan contended in a highly case-specific dissent.
Macomber continues this term's trend of narrow opinions that will have limited precedential effect. I don't mean to at all suggest that that's a bad thing; after all, it is judges' job to decide the cases before them.
Monday, February 23, 2009
The Government's Article 62 appeal in the case was orally argued on 17 October 2008. Congress has provided that "whenever practicable," Courts of Criminal Appeals shall give Article 62 appeals "priority over all other proceedings before that court." Art. 62(b), UCMJ. Yet NMCCA hasn't issued a ruling in the Chessani case.
I understand that last week, four months after the case was argued and eight months after Judge Folsom ordered charges dismissed without prejudice, appellate government counsel filed a motion for an expedited ruling in the case. And I understand that NMCCA denied that motion the day after it was filed.
Given that the dismissal of charges was without prejudice, I'm still perplexed by why the government appealed the ruling. LtCol Chessani's court-martial would be over by now if the case had simply been turned over to a different CA. The argument is often made that the military justice system can't provide all the protections of a civilian system because there is a special need for speedy disposition of charges in the military. But here's the government itself making a decision that needlessly prolonged the court-martial process.
Sunday, February 22, 2009
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.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."
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 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.]
Saturday, February 21, 2009
Judge Ham's opinion for a unanimous ACCA panel indicates that PVT Fisher had some novel thoughts about extenuation and mitigation. The opinion tells us that he "made a rambling, profanity-laced unsworn statement," which included his comment that his "shit smells better than most of the people in here." Id., slip op. at 4 & 4 n.1. We can only imagine how the trial defense counsel felt when those words came out of the accused's mouth. But ACCA's opinion didn't involve the defense's sentencing evidence; rather, it involved the prosecution's.
The only witness in the government's sentencing case was PVT Fisher's company first sergeant. SFC Essinger testified in aggravation that delay in bringing Fisher's case to trial caused a "perception" that the command was "soft on--on the major crimes." The trial counsel also elicited SFC Essinger's testimony that preparing for Fisher's trial had been labor intensive fand inconvenient for his unit. The defense didn't object to this testimony.
In his sentencing argument, the trial counsel requested 15 months of confinement, a BCD, total forfeitures, and reduction to E-1. That's precisely the sentence that the military judge imposed. The TC's sentencing argument highlighted the inconvenience Fisher's unit suffered to prepare the case for trial, including taking Fisher to appointments with his defense counsel. The TC also asked the military judge to "send a message to soldiers of this unit, many of them seated here today, that the command is not soft on crime." The defense didn't object to this argument.
ACCA specified two issues as to whether this evidence and argument constituted plain error. The government conceded, and ACCA agreed, that "SFC Essinger's testimony concerning the time devoted to appellant's court-martial and trial counsel's use of this evidence in sentencing argument were improper." ACCA held that the evidence and argument "were clear, obvious error." ACCA also concluded that "SFC Essinger's testimony that the delay in appellant's court-martial caused other soldiers to view the command as soft on crime was also clear, obvious error, as was trial counsel’s comment on this testimony in the sentencing argument." ACCA was particularly troubled by the prosecution's evidence and argument about "the hours spent by the command escorting appellant to and from his legal appointments. This evidence and argument is inappropriate and casts in an improper and negative light the unquestioned necessity of appellant's consultation with his defense counsel and preparation of his case."
But ACCA found that the errors were harmless, despite the military judge imposing precisely the sentence requested by the TC in his clearly and obviously erroneous sentencing argument. The ACCA emphasized that the defense didn't object to either the evidence or the argument. Instead of objecting, the trial defense counsel "chose to attack the improper evidence through effective cross-examination, and to attack the improper argument through counterargument." This minimized the damage that the errors caused. In declining to grant relief, ACCA also emphasized that this was a judge-alone trial and noted that "there is no requirement for the military judge to state on the record that he did not consider improper argument or evidence."
ACCA concluded, "Appellant's arguments would carry more weight if trial defense counsel objected at trial or if this case was tried before members instead of by military judge alone. But neither is the case, and, under the facts presented, appellant has failed to demonstrate that any improper evidence or argument materially prejudiced his substantial rights. Therefore, he is not entitled to any relief." Id., slip op. at 10 (internal citations omitted).
The issue in Fisher is similar to that in Stephens, No. 08-0589/AF, which was argued at CAAF on 12 January. The granted issue in Stephens 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." Stephens, however, was tried before members and the defense counsel objected to the evidence. Fisher's rationale, though not its outcome, will likely be strengthened or undercut when CAAF releases its opinion in Stephens.
[DISCLAIMER: I am one of the appellate defense counsel in Stephens.]
Friday, February 20, 2009
When a military judge reverses or sets aside a court-martial verdict and a new trial is not ordered, all rights and privileges — including back pay — are restored to the accused.McMichael reports that DFAS makes case-by-case determinations as to whether to restore money in other cases.
But if a sentence is merely reduced, pay restoration is not automatic.
The related court-martial of Sgt Ryan Weemer is scheduled for trial on 30 March. Former Marine Sgt Jose Nazario was acquitted on similar charges in a MEJA prosecution in U.S. district court.
On 7 January, CAAF knocked down a West Point cadet's housebreaking conviction to an unlawful entry and authorized ACCA to reassess the sentence. United States v. Conliffe, 67 M.J. 127 (C.A.A.F. 2009). We discussed that case here. The mandate in Conliffe didn't issue until 2 February. Somehow, just 15 days later, ACCA issued this opinion in the case, reaffirming the original sentence. United States v. Conliffe, No. ARMY 20040721 (A. Ct. Crim. App. Feb. 17, 2009)(per curiam). Does ACCA not allow appellate defense counsel to provide input in a situation like this? If not, that seems problematic.
Not surprisingly, Judge Sullivan today granted DOJ's consent motion to extend its deadline for answering the habeas petition. Here's the minute order:
MINUTE ORDER granting Consent Motion for Extension of Time to Respond. Response shall be filed by 3/2/09. Signed by Judge Emmet G. Sullivan on February 20, 2009. (lcegs1) (Entered: 02/20/2009)Adolph v. Gates, No. 1:09-cv-00135-EGS (D.D.C. Feb. 20, 2009).
In light of criticisms lodged against the MilJus system, I wonder if this comment in the TC's closing, as quoted by S and S, was playing to the mass audience, "If you buy the defense argument, you are saying there is no such thing as premeditated murder in a time of war — that the U.S. does not hold itself to the same standard it expects of others."
A question to our readers, a fact in the case that didn't get a lot of press, but was mentioned recently was that Sgt Leahy was a medic--see BBC report here. I wonder if that helped or hurt Leahy in this type of case? I think it probably was held against him, thoughts?
Thursday, February 19, 2009
We also noted that during yesterday's oral argument in Harvey at the Air Force Court, both the appellate defense and appellate government counsel agreed that Marcum had created a new de facto element for consensual sodomy charges tried under Article 125 (though the appellate government counsel argued that this de facto element didn't apply to consensual sodomy charges tried under Article 133). Unbeknownst to me until today, at some point yesterday the Air Force Government Trial and Appellate Counsel Division (JAJG) tried to call an oral argument Mulligan. This is from a motion JAJG filed yesterday at some point after the oral argument:
Appellee would like to clarify a position taken by counsel during oral argument concerning the applicability of the Marcum factors. In cases where Marcum factors apply, the factors do not involve questions of fact that would be given to the members to determine. The United States does not believe that Marcum factors apply or should be given as part of the instructions to panel members in cases where a violation of Article 133, UCMJ, is charged. As explained during oral argument, a charge of Article 133 is wholly different in its nature and the considerations involved than a charge of Article 125. If, however, this Court determines that Marcum factors apply when Article 133 is charged, this means that the military judge should consider the Marcum factors as a question of law to determine if the charge is constitutional as applied to an accused. It does not mean that the members are given instructions as if the Marcum factors are a part of the elements to determine findings of fact. This is the position of the United States despite counsel's statements during oral argument.I'm actually surprised by JAJG's attempt to walk back its position. If I were government counsel at a court-martial, I would prefer that the members rather than the military judge decide whether the case fell within one of the three Marcum factors. If it's treated as a question of fact, then the members decide it, subject only to a factual and legal sufficiency review by the CCA and possible legal sufficiency review by CAAF and the Supremes. If, on the other hand, it's treated as a question of law, then it's subject to de novo review by the CCA, by CAAF, and by the Supremes. On the defense side of the house, at the trial level I would prefer it to be a question of law that I could ultimately win at CAAF rather than a factual question that the members would, in essence, definitively resolve. In some future Article 125 prosecution, a trial defense counsel who has the same view as me can now rely the government's Harvey motion from yesterday in support.
Likewise, in cases like Marcum where a violation of Article 125, UCMJ, is charged, the Marcum factors apply in that the Court should consider the factors as a matter of law to determine whether the charge is constitutional as applied to that case. This is what the Court did in Marcum regarding sodomy with a subordinate, and the Court found that the charge was Constitutional as applied rather than remanding the case for a finding of fact. The application of the Marcum factors does not mean that the factors become a part of the elements for sodomy or that instructions to the members should include the Marcum factors. Marcum means that the Court should consider the Marcum factors as a matter of law to determine whether the charge is constitutional as applied.
Wednesday, February 18, 2009
Also today, with impecable timing, the January 2009 issue of the Army Lawyer went up on the web with a lead article about Article 125. Major Joel P. Cummings, Is Article 125, Sodomy a Dead Letter in Light of Lawrence v. Texas and the New Article 120?, Army Law., Jan. 2009, at 1. Here's a link.
Military justice practitioners will also be interested in the issue's article on military justice in a deployed setting, available here. Captain A. Jason Nef, Getting to Court: Trial Practice in Deployed Environment, Army Law., Jan. 2009, at 50.
In related news, the WaPo business section reported Saturday that Blackwater Worldwide has changed its name to Xe.
For those who really care about this case, here's the minute entry entered in the case's docket today:
Minute Entry for proceedings held before Judge Ricardo M. Urbina: Motion Hearing as to PAUL ALVIN SLOUGH, NICHOLAS ABRAM SLATTEN, EVAN SHAWN LIBERTY, DUSTIN LAURENT HEARD, DONALD WAYNE BALL held on 2/17/2009 re 34 MOTION to Dismiss Case filed by DONALD WAYNE BALL, PAUL ALVIN SLOUGH, DUSTIN LAURENT HEARD, EVAN SHAWN LIBERTY, NICHOLAS ABRAM SLATTEN, heard and denied. 35 Joint MOTION to Dismiss Case for Lack of Venue filed by DUSTIN LAURENT HEARD, heard and denied. (Bond Status of Defendant: Defendants on PR Bond) (Court Reporter: Wendy Ricard) (Defense Attorney: Michael Barakz, Mark J. Hulkover, and Bruce Bishop-#1, Thomas G. Connolly, and Steven A. Fredley-#2, William F. Coffield-#3, David Schertler, Danny Onorato and Veronica Renzi Jennings-#4, Steven J. McCool-#5; US Attorney: Jonathan M. Malis, Kenneth Clair Khol, Barry Jonas, Joseph N. Kaster) (hsj, ) (Entered: 02/18/2009)United States v. Slough, et al., No. 1:08-cr-00360-RMU (D.D.C. Feb. 18, 2009).
Testimony in the Leahy case began yesterday. According to AP, here, SSgt Jess Cunningham's testimony put a pistol in Sgt Leahy's hand as he walked toward the blindfolded and handcuffed detainees and just before he heard shots that killed the four detainees. According to the report, Cunningham testified that Leahy's co-accused, Sgt Hatley, asked Cunningham to participate, but he refused.
According to the ever reliable North County Times, here, the Sgt Jermaine Nelson court-martial appears to be stalled with pre-trial motions. According to the report, defense counsel Phil Simmons is objecting to the expert on PTSD provided to the defense now that the government has hired a world renowned PTSD expert. Reports say defense counsel want an equally qualified expert, since there own conceded that he is "not as qualified as the prosecution's expert," or at least the one they originally requested.
Tuesday, February 17, 2009
Sgt Foster was convicted of raping his wife five years before his court-martial, as well as a couple of specs of aggravated assault and communicating a threat. The rape conviction was based entirely on his wife's testimony (after the allegation arose during a contested child custody case) and prior consistent statement evidence. On the other side of the ledger, Sgt Foster and his wife continued to have sexual relations after the alleged rape, apparently including on videotape. He received a sentence that included confinement for 17 years and a DD.
NMCCA's Foster opinion twice suggests that it is reversing the rape conviction on both legal and factual sufficiency grounds, but it seems pretty clear that it actually reversed the conviction only on factual sufficiency grounds. Compare id., slip op. at 3 ("We conclude that the appellant’s conviction for rape cannot withstand the test for legal and factual sufficiency and dismiss it with prejudice."), and 5 ("In his first assignment of error, the appellant contends the evidence that he raped Heather Foster was legally and factually insufficient. We agree."), with id., slip op. at 7 ("Considered in the light most favorable to the Government, a reasonable member could choose to believe the victim, and to disbelieve evidence inconsistent with guilt"; and "we hold that his conviction of rape was factually insufficient").
The court then proceeded to reverse the other convictions as well, finding cumulative error. First, the court found plain error in a government expert witness's testimony during which she essentially offered expert opinion that the charged offenses occurred. In a nice turn of phrase, NMCCA observed that the witness, Dr. Rusher, "adopted the facts as advanced by the alleged victim and cloaked them in a physician’s white coat, presenting them as scientific findings to the members." Id., slip op. at 10. NMCCA then concluded that "the military judge was unable to 'unring the bell,'" despite trying to do so by giving the members a curative instruction. Id., slip op. at 12.
The court also noted that the military judge permitted the members to hear testimony of the alleged victim's six-year-old son, only to then learn that he "had not been born at the time of one of the charges about which he was testifying, and that he was approximately two years old at the time of the most recent alleged act." Id., slip op. at 13. The military judge then ordered the boy's testimony stricken and instructed the members to disregard it. NMCCA concluded that the combined "errors call into question the fairness of the appellant's trial." Id., slip op. at 14. The court therefore vacated the findings. Id.
Now here's the really interesting part. Having set aside and dismissed the rape conviction and set aside the remaining convictions 10 years into the accused's 17-year sentence, NMCCA went all Reverend Dimmesdale on itself, self-flagellating over unreasonable appellate delay. While noting unreasonable delay by just about everyone involved in the case's post-trial processing, NMCCA reserved its harshest words for itself. In applying the second Barker v. Wingo factor, the court concluded: "the bulk of delay in this case is attributable to the manner in which this court failed to properly advance this litigation. The delay incurred by this court’s ineffective action amounts to nothing less than judicial negligence." Id., slip op. at 17. The court also concluded that Sgt Foster was severely prejudiced by the delay, observing that "the appellant has served nearly ten years of confinement, in part, for an offense of which he should not have been convicted." Id., slip op. at 18. NMCCA concluded that the appellate delay violated Sgt Foster's due process rights and that the violation wasn't harmless. To remedy that violation, NMCCA capped the authorized sentence at any rehearing on the undismissed charges at a punitive discharge. Id., slip op. at 19.
In his separate concurrence, Chief Judge O'Toole again flayed everyone involved in the case's post-trial processing, lashed NMCCA the hardest, noted improvements that the Judge Advocate General of the Navy had made to avoid a repetition of such delay, and called on everyone in the system to remain vigilant. Id., slip op. at 19-20 (O'Toole, C.J., concurring).
With its useful discussions of both cumulative error and appellate delay, Foster seems destined to become one of the most frequently cited unpublished CCA opinions.
The time difference between the two courthouses is approx. 12 hours, so we will do our best to give you an update that covers the same day's news for each--though I won't guarantee that.
Update: The trial of Sgt. Michael Leahy is underway in Germany, AP report here. According to reports, SSgt Jess Cunningham, who last week had all charges in the same incident dropped (report here), will testify against Sgt. Leahy. Cunningham reportedly sat in a HMMMV and refused to participate in the killings; then reported the incident 6 months later to military authorities (apparently at first to a TDC). According to the same report, defense counsel Frank Spinner objected to Cunningham being allowed to testify--though reports don't say what the issue about Cunningham's testimony had been or the basis for Spinner's objection beyond insufficient time to prepare for his testimony.
Sunday, February 15, 2009
This week at the Supreme Court: The Supremes will hold a conference on Friday and several military justice cases have been distributed for it. The cert petition in Cabrera-Frattini v. United States, No. 08-830, the pro se IFP cert petition in Robertson v. United States, No. 08-8095, and the rehearing petition in Ryan v. United States, No. 08-422, have all been distributed for Friday's conference. We'll probably learn those cases' fate (which will almost certainly be denials) a week from tomorrow.
This week at CAAF: CAAF has no oral arguments scheduled this week.
This week at the CCAs: On Wednesday, AFCCA will hear oral argument in a particularly interesting case. The issue that will be argued in United States v. Harvey, No. ACM 36641, is: "IN LIGHT OF UNITED STATES V. MARCUM, 60 M.J. 198 (C.A.A.F. 2004), DID THE MILITARY JUDGE ERR BY NOT ALLOWING THE MEMBERS TO DETERMINE WHETHER APPELLANT'S CONSENSUAL HOMOSEXUAL SODOMY INVOLVED (1) A PROTECTED LIBERTY INTEREST, (2) FACTORS THAT EXCLUDED IT FROM PROTECTION, AND/OR (3) FACTORS RELEVANT SOLELY IN THE MILITARY ENVIRONMENT THAT EXCLUDED IT FROM PROTECTION?" My understanding is that AFCCA denied a request by SLDN to participate in the argument as amicus. Can anyone definitively confirm or deny that understanding?
Thursday is a biggie at ACCA. The Army Court will be hearing oral argument on an interlocutory issue in the capital appeal of United States v. Akbar, No. ARMY 20050514. ACCA's web site tells us that ACCA "granted argument on whether appellant's Motion for Appointment and Funding of a Forensic Psychiatrist and Forensic Psychologist to assist in appellate review should be granted."
This week at the trial level: The No Man informed me that the court-martial of Marine Sgt Jermaine Nelson will start this Wednesday, as reported here by the North County Times. Sgt Nelson is charged with unpremeditated murder in the alleged shooting of a detainee and several other related offenses. He is an alleged co-actor of former Marine Sgt Jose Nazario, who was tried and acquitted in U.S. district court on charges arising from the same incident. Sgt Nelson was held in contempt during that trial for refusing to testify.
Thursday, February 12, 2009
One of SSgt Melson's many offenses was bigamy and another was making a false official statement about his marital status on a Georgia state marriage license application. Not surprisingly, AFCCA held that the statement to a Georgia court clerk wasn't "official" and set aside the 107 conviction. The court reassessed the sentence and lopped 8 months off the 12 years of confinement, thus providing very meaningful relief. (To once again quote ex-Governor Rod Blagojevich, getting out of prison eight months early "is a [expletive deleted]ing valuable thing.")
After shooting down a factual/legal sufficiency challenge to the attempted manslaughter conviction, AFCCA turned to an IAC claim. Melson argued that his trial defense counsel should have raised an illegal pretrial punishment claim but didn't. Melson submitted a detailed affidavit painting a bleak picture of the county jail where he was held pretrial. The government submitted no counter-affidavit. AFCCA found IAC due to the trial defense counsel's failure to seek additional sentence credit. The court remedied the error by awarding 142 days of Suzuki credit.
Having failed to obtain and present an affidavit during the initial litigation before AFCCA, the government then obtained an affidavit from the trial defense counsel and sought reconsideration, which AFCCA denied. The Judge Advocate General of the Air Force then certified the case to CAAF, which reversed the Air Force Court, holding that it couldn't rule on the IAC claim until it had first "order[ed] a response from the trial defense counsel as to the allegations." United States v. Melson, 66 M.J. 346 (C.A.A.F. 2008). As I've previously noted, I'm not a fan of CAAF's Melson opinion, which seems to encourage and reward government sandbagging and, darn it, sandbagging is the defense's job.
In Melson, CAAF "set aside" AFCCA's opinion. Today AFCCA issued its replacement opinion. United States v. Melson, No. ACM 36523 (f rev) (A.F. Ct. Crim. App. Feb. 12, 2009) (per curiam). The replacement opinion reached the same result as to the false official statement charge and provided the same remedy. But this time, there was no extra 142 days of credit due to the pretrial confinement conditions. In rejecting the IAC claim, AFCCA concludes that "[s]ome of the appellant's assertions are corroborated (co-mingling of prisoners, lack of socks and undergarments, and lack of legal resources at the facility), others are contradicted (lack of medical treatment and lack of any legal resources), and others are merely speculative or conclusory (extreme temperatures, harassment by a security guard, and being transported in prison garb)." Id., slip op. at 7. Okay, so several claims are corroborated and a couple are contested -- which means that AFCCA can't reject them on the basis of conflicting affidavits. And how "extreme temperatures, harassment by a security guard, and being transported in prison garb" can be dismissed as "speculative or conclusory" is simply beyond me. For example, AFCCA's original opinion tells us that Melson claimed that the temperature in the county jail exceeded 100 degrees in the summer and was extremely cold in the winter due to "terribly poor" heating units, broken windows, inadequate clothing, and denial of underwear. How is that claim either "speculative or conclusory"? The original panel opinion also says Melson indicated that he wasn't allowed to change out of prison garb when he went to the Air Force base for legal appointments. Again, how is that claim either "speculative or conclusory"?
Ah, here's something that is conclusory. AFCCA concludes: "Returning to the Strickland test for ineffective assistance of counsel, we find the appellant has failed to meet his burden and the trial defense counsel was not ineffective. Assuming trial defense counsels' [sic] conduct was deficient, we find no prejudice." Id., slip op. at 7. Why? I have no idea.
The Melson case has already been scrutinized by military appellate courts three times. Here's hoping for a fourth.
The sample pretrial agreement in the Navy JAG Manual is two pages long. PTAs in the real world are already 6-10 pages.(BTW, and I kid you not, Sir Cloudesley has his own Facebook page; I know, because I'm a "Facebook friend" of the dearly departed admiral's.)
They are about to get longer. Any SJA or trial counsel that fails to foreclose these appellate issues with a well-crafted PTA is not doing his job.
Every PTA should have boilerplate paragraphs putting the accused on notice of collateral consequences, a complete laundry list, with the accused acknowledging that the law can change at any time. The accused should be required to affirmatively acknowledge that he has been put on notice of all possible collateral consequences, known and unknown, and that the accused bears the risk of being subject to an undiscovered or unperceived collateral consequence, and also places upon the accused the affirmative duty to research all possible collateral consequences, and require him to affirmatively state his is satisfied with his attorney's advice with regard to collateral consequences.
SJAs should not rely upon the diligence of defense counsel. If a guilty plea gets flipped, its the gov't that deals with the consequences, not the defense atty.
I can think of several collateral consequences that the PTA should put the accused on notice of, regardless: deportation, voting, weapons possession, sex offender registration, limitations on foreign travel (either through loss or inability to get a passport or through prohibitions by the foreign country), property forfeiture, inability to get a student loan, loss of military and veteran's benefits, inability to get a professional license (depending on the state licensing scheme), inability to hold public office, mandatory DNA testing, impairment of ability to get employment (public and private), inability to qualify to adopt a child, loss of child custody in a divorce, termination of parental rights, inability to qualify for public housing, loss of drivers license. I'm sure others could think of more categories.
If not in the PTA, then SJA's and trial counsel should require that the laundry list of collateral consequences be listed on a separate document, signed by the accused and counsel, and admitted into evidence at the guilty plea hearing in order to insulate against appellate attacks on the guilty plea based upon lack of knowledge of guilty pleas or "affirmative misrepresentation." Or demand that the military judge address the issue on the record. Haven't looked at the Benchbook lately; has a colloquy regarding collateral consequences been inserted into the Benchbook?
The Court-Martial Trial Practice blog also has a post about Rose's implications here.
Published AFCCA opinion grants relief due to counsel's failure to accurately answer accused's questions about sex offender registration
Wednesday, February 11, 2009
Tuesday, February 10, 2009
Monday, February 09, 2009
The piece's subhead encapsulates its point: "The top 10 cases the Obama Justice Department should redo." The article's thesis is that "[t]he overarching Bush effort that Obama's lawyers should reject is the pervasive, insistent attempt to keep people out of the courts." It offers 10 cases in which to reverse that approach. And there at #3 is United States v. Denedo (though, unfortunately the piece refers to CAAF by its previous name—the one Congress changed in 1994). The authors conclude, "This case seems small, but it's another one that raises the important question of access—which the Court of Military Appeals got right. The new DoJ should ask the Supreme Court not to hear the case after all, so that a hearing into the facts surrounding Denedo's guilty plea can proceed in the place it should—the military courts."
Here, via the War Profiteers web site, are the filings on those jurisdictional issue in the case of United States v Slough, et al. Defense, Government, Defense Reply.
I. WHETHER THE APPELLANT’S GUILTY PLEA TO DISTRIBUTION OF CHILD PORNOGRAPHY WAS IMPROVIDENT, AS THERE WAS NO EVIDENCE THAT APPELLANT DELIVERED ANY UNLAWFUL IMAGES TO ANYONE?NMCCA directed counsel to be prepared to discuss how Issue I is affected by United States v. Kuemmerle, 67 M.J. 141 (C.A.A.F. 2009).
II. WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE DID NOT DECLARE SUA SPONTE THAT THE OFFENSES OF RECEIVING AND POSSESSING CHILD PORNOGRAPHY WERE MULTIPLICIOUS?
I look forward to seeing whether the argument is posted online and, if so, listening to it while enjoying a refreshing beverage.
Sunday, February 08, 2009
This week at CAAF: CAAF will hear two oral arguments on Tuesday. The first is in United States v. Riddle, No. 08-0739/AR. The issue in Riddle is "WHETHER APPELLANT'S PLEAS TO ALL CHARGES AND SPECIFICATIONS WERE IMPROVIDENT BECAUSE THE MILITARY JUDGE DID NOT EXPLAIN OR DISCUSS THE DEFENSE OF LACK OF MENTAL RESPONSIBILITY, DID NOT SATISFY HIMSELF THAT COUNSEL HAD EVALUATED THE VIABILITY OF THE DEFENSE, AND DID NOT ELICIT FACTS FROM APPELLANT THAT NEGATED THE DEFENSE." I notice that counsel for the Appellant is listed as William M. Fischbach, III, Esq. I assume this is the same person as MAJ Fischbach. Did he recently leave the Army? If so, where is he now?
The second case to be argued on Tuesday is in United States v. Ranney, No. 08-0596/AF. The issues in Ranney are:
I. WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE FINDING OF GUILTY FOR DISOBEYING A LAWFUL COMMAND WHERE THERE WAS NO EVIDENCE THAT THE COMMAND WAS DIRECTED PERSONALLY TO APPELLANT OR THAT APPELLANT KNEW IT WAS FROM A SUPERIOR COMMISSIONED OFFICER.This week at the CCAs: On Wednesday, ACCA will hear oral argument in United States v. Johnson, No. ARMY 20070961. The issue is "WHETHER THE MILITARY JUDGE ERRED BY NOT INFORMING THE PANEL THAT THEY WERE TO MAKE A DETERMINATION THAT THE IMAGES ALLEGED INVOLVED REAL CHILDREN AND NOT VIRTUAL CHILDREN, AND THAT IF THEY FOUND THAT THE CHILDREN WERE VIRTUAL, THEY MUST ENTER A FINDING OF NOT GUILTY."
II. WHETHER THE ORDER IN THE SPECIFICATION OF CHARGE II WAS LAWFUL ORDER WHEN THE EVIDENCE INDICATED THE ORDER'S PURPOSE WAS TO ACCOMPLISH SOME PRIVATE END.
During calendar year 2007, AFCCA issued opinions in 506 Article 66 appeal cases. (In other words, my data universe excludes petitions for extraordinary relief and Article 62 appeals.) Most, but not all, of those decisions are on the court's web site. I was able to look at all the decisions, including those that weren't on the web site.
In those 506 decisions, AFCCA granted some form of relief in 93 cases (18%).
In 32 of the 93 cases in which AFCCA granted relief, the relief was limited to ordering a corrected court-martial promulgating order or a corrected (as opposed to new) convening authority's action.
In another 14 of the 93 cases, the relief consisted of AFCCA ordering a new convening authority's action.
In 7 of the 93 cases, the relief consisted of setting aside confinement that had already been served.
In 13 of the 93 cases, the relief consisted of setting aside a finding of guilty to a specification or affirming a finding of guilty to an LIO or excepting language from a finding of guilty to a specification while affirming the sentence as approved below.
In one case, the relief consisted of setting aside contingent confinement that had already expired. United States v. Rausch, No. ACM 36784 (Feb. 28, 2007).
In one case, the relief consisted of setting aside a reprimand while leaving the adjudged and approved bad-conduct discharge undisturbed. United States v. Collette, No. ACM S31176 (A.F. Ct. Crim. App. Jan. 26, 2007).
In one case, the relief was a new 706 board. United States v. Mackie, 65 M.J. 762 (A.F. Ct. Crim. App. 2007), aff'd, 66 M.J. 198 (C.A.A.F. 2008).
In 11 cases, AFCCA set aside or reduced forfeitures (though in one case, the total amount of reduced forfeitures was less than $9, United States v. Easterling, No. ACM S31042 (A.F. Ct. Crim. App. Feb. 16, 2007)).
In one case, the relief consisted of reducing a DD to a BCD on sentence appropriateness grounds, which could potentially have a significant effect on the VA benefits that the accused will receive. United States v. Daugherty, No. ACM 36542 (A.F. Ct. Crim. App. July 215, 2007).
In four cases, AFCCA disapproved BCDs.
In six cases, AFCCA reduced unserved confinement, thus resulting in the accused's release from confinement sooner. In one of those cases, confinement was reduced by three days on a two-year sentence. United States v. Thompson, No. ACM 36943 (A.F. Ct. Crim. App. Sept. 24, 2007). Still, as the Supremes observed in a military justice case, "While it is true that Captain Noyd has only two days yet to serve on his sentence, he should not be required to surrender his freedom for even this short time unless it is found that the law so requires." Noyd v. Bond, 395 U.S. 683, 699 (1969). Or, to use ex-Governor Rod Blagojevich's immortal phrase, even a three-day reduction in confinement "is a [expletive deleted]ing valuable thing."
AFCCA set aside all findings and the sentence in two cases. In one, the court set aside all findings and the sentence while authorizing a rehearing due to the military judge's erroneous denial of a defense challenge for cause. United States v. Bryant, 65 M.J. 746 (A.F. Ct. Crim. App. 2007). In the other, AFCCA set aside a 10-year-old conviction and the sentence and dismissed the charges because the government lost the record of trial and couldn't reconstruct it. United States v. Castilleja, No. ACM 36975 (A.F. Ct. Crim. App. Nov. 21, 2007).
So in 2007, AFCCA set aside all findings and the sentence in less than one-half of one percent of the cases it reviewed.
The court granted some form of meaningful relief more often than I would have guessed before starting the project. Wherever one draws the "meaningful relief" line (and the way I draw it results in about a 4.7% meaingful relief rate), the rate of meaningful relief was higher than the less-than-three-percent relief rate that Major Lippert found in a survey of three of the CCAs' handling of special court-martial cases over a five-year period. See Major Jeffrey D. Lippert, Automatic Appeal Under UCMJ Article 66: Time for a Change, 182 MIL. L. REV. 1, 17 (2004).
Saturday, February 07, 2009
The ex writ does its best to distinguish United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007), which had a similar, though not identical, waiver of NMCPB rights. On the LWOP issue the tide is a bit against Quintanilla, Ronghi and Thomas, but there is no case law directly on point as to whether LWOP applies retroactively (for a defendnat specifically asking for it to be applied retroactively).
Furthermore, on information and belief, Petitioner believes the Convening Authority will accept a pretrial agreement that provides for a non-capital sentencing hearing, conditioned upon a presentencing determination that Petitioner’s agreement to waive his right to request clemency or parole is legally permissible. . . .
Furthermore, on information and belief, Petitioner believes the Convening Authority will accept a pretrial agreement that provides for a non-capital sentencing hearing, conditioned upon a presentencing determination that Petitioner’s agreement to waive his right to request clemency or parole is legally permissible.
Disclaimer: Almost everyone on this blog (OK, 3 of us) was a Quintanilla appellate defense counsel (or in the case of a commenter, trial counsel).
Friday, February 06, 2009
We previously noted that the Judge Advocate General of the Coast Guard, Rear Admiral William D. Baumgartner, "has agreed to post all Coast Guard court martial dockets online in early 2009." And so he has, with a CGCCA oral argument schedule lagniappe.
The move comes in the wake of the apparently influential Reporters Committee for Freedom of the Press's report on court-martial dockets, which we discussed here.
We previously noted CGCCA's Jonsson opinion--an extremely interesting decision setting aside an adultery conviction. We now know that it will be published.
The Coast Guard Court's updated web site also posts a new authored opinion issued on 5 February 2009. United States v. Kasprzyk, Dkt. No. 1287 (C.G. Ct. Crim. App. Feb. 5, 2009). The opinion doesn't make it apparent whether it will be published. The case involves fairly uncontroversial discussions of the law governing conspiracy (there need not be an express agreement) and sentence comparisons. The opinion then delivers another blow to the head of the Swiderski zombie.
Yesterday Judge Emmet G. Sullivan of the United States District Court for the District of Columbia issued this show cause order in Adolph v. Gates, Civ. No. 09-135, a habeas action on behalf of a civilian confined in Kuwait with a view to court-martial proceedings. The United States' filing is due 10 days after DOJ is served with Judge Sullivan's order.
We previously discussed the habeas filing here. The petition itself is available here.
Thursday, February 05, 2009
We've previously noted that NMCCA has begun the practice of recording its oral arguments and making them available on the web. We've also previously noted that the Coast Guard Court records its argument, but doesn't make the tapes available to anyone but the court's personnel. (I opined that the Coast Guard Court would have to disgorge the recordings if it received a FOIA request seeking them -- did anyone ever try that to see what would happen? One hopes that NMCCA's and AFCCA's examples will lead CGCCA to make its argument tapes publicly available rather than hoarding them for internal use only.) As we all know, for years CAAF has recorded its arguments and made them publicly available on the Internet. And the Supremes record their arguments and make them publicly available at the end of each term.
Once AFCCA's new practice kicks in, that would appear to leave just one court in the entire military justice appellate chain that doesn't record its arguments: ACCA. What are the prospects for ACCA following its sister courts? Army Lurker?
Today it occurred to me to wonder what the realistic cutoff date is for a case to be granted, argued, and decided this term. The final oral argument sittings of the term are scheduled for 5 and 6 May. Assuming that, realistically, a reply brief would have to be filed no later than Friday, 1 May for a case to be heard on one of those dates, then a case would have to be granted no later than Wednesday, 18 February to be briefed under the normal briefing schedule and ready for oral argument this term. (If a case were granted on Thursday, 19 February, the normal briefing schedule wouldn't run until Monday, 4 May -- just one or two days before the final scheduled sittings of the term.)
CAAF could add oral argument dates later in May to expand this term's docket somewhat. But absent such a change, the total number of opinions of the court this term is likely to be limited to 42 plus the number of cases granted or certified in the 14 days extending from today through 18 February.
Wednesday, February 04, 2009
Tuesday, February 03, 2009
AP reports that then-Deputy Defense Secretary England opined that Blackwater contractors weren't subject to MEJA
Text of Senate Bill 357, the Equal Justice for United States Military Personnel Act of 2009, now available
ACCA's web site's hearing calendar now includes the following:
The web site also includes this summary of the case:
US v. Rosas
Goodson 20060075 2 1700, Thu., 5 Feb 2009
(Hearing at Harvard Law School)
United States v. ROSAS (ARMY 20060075), 5 February 2009 at 1700HRSThe web site doesn't provide any guidance as to members of the public (including members of the military) without a Harvard i.d. would be admitted to the argument.
Ames Courtroom, Harvard Law School.
A general court-martial composed of a military judge alone convicted appellant, contrary to his pleas, of conspiracy to import, introduce, and/or distribute cocaine; three specifications (counts) of wrongful importation, introduction, and/or distribution of cocaine in the United States; seven specifications of wrongful distribution of cocaine; six specifications of wrongful transportation of currency (money laundering); wrongful transportation of firearm; and wrongful use, carrying, and/or possession of a firearm in furtherance of a drug trafficking crime, in violation of Articles 81, 112a, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 912a and 934 [hereinafter UCMJ]. The convening authority reduced the adjudged sentence to confinement from twenty-three years to twenty-two years and approved the remainder of the adjudged sentence to a dishonorable discharge, forfeiture of all pay and allowances, and reduction to Private E1.
Appellate defense counsel raised eight assignments of error for the court’s consideration. At argument, counsel will address Assignments of Error III-V (lack of corroboration of appellant’s confessions); Assignment of Error VI (lack of factual and legal sufficiency); and Assignment of Error VII (the military judge impermissibly imposed a maximum possible punishment as a minimum sentence for an assimilated firearms offense).
Judge Maggs is a Harvard Law alumnus. I don't know about the other two judges on the panel.
Here's the CAAFlog contest:
The first person to correctly guess the identities of Senior Administration Official No. 1 and Senior Administration Official No. 2 wins a CAAFlog t-shirt. Please post your entries below.
Thanks to the Anon commentator who noted that Harvard Law School's web site now includes an announcement of the ACCA argument on Thursday. You can navigate to the announcement through this link.
Here's what the HLS web site says:
NSLA: Army Court of Criminal Appeals HearingCan it really be that ACCA is holding an oral argument that the general public isn't permitted to attend? If an Airman stationed at Hanscom Air Force Base or an NJS instructor stationed at NETC drove to the argument and presented a military i.d., would he or she be turned away?
When Thursday, February 5, 2009, 5 – 7pm
Where Ames Court Room
Event type Lectures
Sponsor National Security and Law Association
Intended Audience All
Note Come hear arguments over the appeal of a soldier's conviction for the smuggling of narcotics and firearms and money laundering. Harvard ID required.
ACCA's web site's oral argument hearing calendar still doesn't reflect the argument.
Monday, February 02, 2009
The UCMJ Commission for 2009 welcomes suggestions and ideas for improving the military justice system from all sources. If you have an idea or suggestion, it adds credibility for the person making the suggestion to take responsibility for having made it and to submit any documents, articles, or research that supports the basis for the suggestion or idea. Please submit your comments, ideas or suggestions to us at: firstname.lastname@example.org.
Walter T. Cox III
I'll have a few updates tonight but I'm under the gun this week, so they'll be quick hits -- probably quicker than they deserve.
Now, I can't say if I was physically in Dolly Sods (though from the website description, here, I suspect not), but I can say this, there were trees with limbs on both sides, in addition to trees with limbs on only one. Thus, unfortunately for CAAFlog, there are probably more trees at Dolly Sods with branches on both their west and east sides than there have been military cert grants. Sorry.
An interesting note, which becomes apparent when you drive Rt. 28 and see signs for military museums and old arsenals, as the website points out, "In 1943, in a cooperative agreement with the army, the "[Dolly Sods Wilderness area] was used as a practice artillery and mortar range and maneuver area before troops were sent to Europe to fight in World War II. " Thus, the area holds a special place in the hearts of the military, but probably not so much in the hearts of hikers, as the below notice from the Dolly Sods website demonstrates:
Special Notice: Many of the artillery and mortar shells shot into the area for practice still exist here. In 1997, a highly trained crew surveyed the trail locations and known campsites for shells. They found 15, some of which were still live. All were exploded on site. Many more may still exist and are dangerous. Since it is impossible to survey every acre of the wilderness, we ask that you follow the recommendations below for your own safety. . . . If you find an artillery shell, often called a bomb, DO NOT pick it up. . . .
Sunday, February 01, 2009
This week at CAAF: CAAF will hear oral argument in two Project Outreach sittings this week. On Tuesday, CAAF will hear oral argument in United States v. Delarosa, No. 08-0390/NA, at Southern Methodist University's law school in Dallas. The granted issue is "WHETHER (1) THE LOWER COURT ERRED IN ADOPTING A TEST TO DETERMINE WHETHER APPELLANT'S ASSERTION OF HIS RIGHT TO REMAIN SILENT WAS SCRUPULOUSLY HONORED THAT DIFFERS FROM THE TESTS SET FORTH BY THE UNITED STATES SUPREME COURT IN MICHIGAN v. MOSLEY, 423 U.S. 96 (1975) AND UNITED STATES v. WATKINS, 34 M.J. 344 (C.M.A. 1992); AND (2) WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE CORRECTLY DENIED THE DEFENSE MOTION TO SUPPRESS APPELLANT'S CONFESSION MADE TO THE DETECTIVES AT THE NORFOLK, VIRGINIA, POLICE DEPARTMENT."
On Thursday, CAAF will hear oral argument in United States v. Chatfield, No. 08-0615/NA, at Texas Tech's law school in Lubbock. The granted issues in Chatfield are:
I. WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN FAILING TO SUPPRESS APPELLANT'S STATEMENT TO CIVILIAN AUTHORITIES AS INVOLUNTARY.This week at the CCAs: AFCCA will hold oral argument on Thursday in a Project Outreach sitting at an Air Force trial advocate conference in Charleston, S.C. The issue to be heard in United States v. Anderson, No. ACM 37157, is "WHETHER APPELLANT'S SENTENCE THAT INCLUDES 15 YEARS CONFINEMENT IS INAPPROPRIATELY SEVERE IN LIGHT OF THE DISPARATE SENTENCE IMPOSED ON HIS CO-ACTOR, HIS CONTRITION AND HIS ACCEPTANCE OF RESPONSIBILITY."
II. WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO AFFIRM APPELLANT’S CONVICTION.