Fall Military Law Review published

TJAGLCS has published the 50th anniversary edition of the Military Law Review. Here's a link.

Military judge rules Col Murphy can't be punished

COL Henley, the Army's chief trial judge who is presiding over the trial of Air Force Col Michael D. Murphy, has ruled that Col Murphy can't be sentenced to any punishment. Judge Henley issued that ruling in response to the government's refusal to provide the defense with access to classified information concerning Col Murphy's service at the White House Military Office. The government has announced its intention to appeal.

Here's a link to a publicly available Air Force Times article about the ruling. Today's print version has a slightly longer article about the ruling.

Interesting analysis of Kennedy v. Louisiana rehearing petition

Professor Yung of John Marshall Law School -- the host of the Sex Crimes blog -- has written an interesting analysis of Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), and the state of Louisiana's and Acting SG's efforts to have the Supremes revisit the opinion. Here's a link to his blog's discussion of his analysis. The blog post includes a link that will allow you to click through to the article itself. (Here's a link that may or may not lead directly to the article; I had to register with SSRN before I could get it to work.)

(For those of you following Kennedy closely, Professor Yung also provides a Kennedy v. Louisiana resource page, available here.)

Professor Yung makes the interesting point that Kennedy v. Louisiana's exclusion of the military justice system from its survey of U.S. criminal justice systems was consistent with every previous Supreme Court opinion using a nose-counting approach to analyzing the Eighth Amendment's Cruel and Unusual Punishment Clause. He writes: "The United States Supreme Court has issued twenty-eight opinions, including Kennedy, that have utilized the evolving standards of decency approach in analyzing claims under the Cruel and Unusual Punishment Clause of the Eighth Amendment. While several Court opinions mentioned the military or the UCMJ, not one opinion considered the military's criminal code as part of the objective indicia in determining the national consensus." (footnote omitted). And, he emphasizes, that includes Coker v. Georgia, 433 U.S. 584 (1976), the Supremes' previous Eighth Amendment analysis of rape as a capital offense.

Professor Yung goes on to argue that the UCMJ should be excluded from assessments of evolving standards of decency because military justice is sui generis. He argues: "When Congress enacts a law to modify the UCMJ, it only reflects a national consensus of the legitimacy of such a modification in the military -- not to society at large."

He concludes that while critics of the Kennedy decision might challenge the entire nose-counting approach to interpreting the Eighth Amendment, "to use the omission of the UCMJ amendment as a Trojan horse for the larger substantive argument is simply unsupportable as a matter of law, history, and practice."

AFCCA issues published search and seizure decision

On Friday, AFCCA issued a published search and decision. United States v. McMahon, __ M.J. ___, No. ACM S31268 (A.F. Ct. Crim. App. Sept. 12, 2008). Here's a link.

The central issue in McMahon arose because neither the magistrate nor the OSI agent who obtained the search authorization from the magistrate was available to testify at trial. And the affidavit seeking the search authorization didn't identify the informant who provided the information that led the magistrate to authorize the seizure of A1C McMahon's urine for testing.

The military judge denied a defense suppression motion. And while AFCCA's opinion was fairly critical of the trial judge's approach to the issue, it conducted a de novo analysis and concluded the informant's credibility was sufficiently corroborated to provide adequate probable cause. AFCCA placed "considerable significance on the fact that the source had successfully executed a buy-walk drug purchase for the AFOSI. His ability to execute the purchase within a day of initially identifying the appellant is significant." Id., slip op. at 5. (The opinion defines a "buy-walk drug purchase" as an informant purchasing drugs and returning them to the controlling law enforcement agent with no arrest taking place at the time of the sale. Id., slip op. at 2 n.4.) The court also reasoned that "[e]ven if AFOSI agents had told the magistrate the name of the informant, it is probable that he would have had no personal knowledge of this particular Airman First Class and would have relied on exactly the same factors we do in concluding the informant was reliable." Id., slip op. at 5.

Expanding the Supremes' statutory cert jurisdiction over military justice cases

On the same day that the Senate Judiciary Committee unanimously voted to favorably report S. 2052 to the full Senate, the bill's House counterpart -- H.R. 3174 -- picked up a new co-sponsor: Rep. Robert Wexler (D-Fla.).

Denedo watch

The Supremes have extended Denedo's counsel's period for responding to the Acting S.G.'s cert petition until 27 October 2008. United States v. Denedo, No. 08-267.

See for yourself

Earlier today, the No Man reported on today's Senate Judiciary Committee passage of the Equal Justice for United States Military Personnel Act, which would give the Supremes statutory cert jurisdiction to review any case granted OR DENIED by CAAF. Here's a link to the bill's scintillating consideration by a committee of the organization that likes to call itself the world's greatest deliberative body. The committee's consideration of S. 2052 starts at 35:28 and the bill has won unanimous approval without amendment by 36:00.

S.2052 Passes Senate Judiciary Committee

S. 2052, the Equal Justice for United States Military Personnel Act of 2007, passed the full Senate Judiciary Committee today without objection. Next stop, back to the clerk for placement on the calendar (but, I never really got that whole process in Civics class).

Grants

CAAF has granted review of at least two cases so far this week. On Monday, it granted review of this specified issue:

WHETHER THE PHRASE "WITH INTENT UNLAWFULLY TO OBTAIN AN ADVANTAGE, TO WIT: SEXUAL RELATIONS," IN THE SPECIFICATION OF CHARGE II STATES THE OFFENSE OF EXTORTION IN LIGHT OF THE PROVISION IN THE MANUAL FOR COURTS-MARTIAL THAT PROVIDES THAT "AN INTENT TO MAKE A PERSON DO AN ACT AGAINST THAT PERSON'S WILL IS NOT, BY ITSELF, SUFFICIENT TO CONSTITUTE EXTORTION." SEE MANUAL FOR COURTS-MARTIAL, UNITED STATES PT. IV, PARA. 53.c.(94) (2005 ED.).

United States v. Brown, __ M.J. ___, No. 08-0261/AR (C.A.A.F. Sept. 8, 2008). ACCA's unpublished opinion in the case is available here.

Today, CAAF granted review of this issue: "WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS HIS HAIR TEST RESULTS." United States v. Rogers, __ M.J. ___, No. 08-0518/AF (C.A.A.F. Sept. 10, 2008). AFCCA's unpublished decision in the case is available here. The Air Force Court had split 2-1 in the case, with Judge Heimann favoring reversal.

Shameless Self-Promotion: CAAFlog Media

Here are links to media covering SCOTUS's request for supplemental briefing in Kennedy v. Louisiana that mention our esteemed leader: WaPo, ABC News, WSJ, Houston Chronicle, and the list continues. I won't say how many call him an Air Force civilian lawyer rather than a Colonel in the Marine Corps Reserves. Reserve weekends must be a lot of fun for CAAFlog. Have they bought you baby blue shirts yet?

Here is an amusing note below the WSJ article, that I am sure made the SG's office very happy.

Corrections & Amplifications

The Justice Department filed a motion with the Supreme Court in Kennedy v. Louisiana asking the court to reconsider its decision after it was disclosed that the state failed to mention a relevant federal statute. This article about the court's possible reconsideration of the case incorrectly said the department filed a brief with the court before the court's opinion in June.