Recon reportedly rejected in Rodriguez

While the order isn't yet up on CAAF's web site, I understand that the court denied the petition to reconsider its ruling in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009).

Speaking of CLE . . .

Our very own No Man, Mike Navarre of Steptoe & Johnson LLP, will be moderating an ABA teleconference and webcast CLE program called "Criminal Accountability for Civilians in the Battle Space" on 19 March from noon to 1330 EDT. Here's a link to information about the program. Among Mike's panelists will be Bob Reed of DOD OGC.

Should we start a pool on when the No Man will moderate an ABA CLE program on Apprendi?

Representatives Skelton and Davis request hearing on H.R. 569

Here's a letter from HASC Committee Chair Ike Skelton and Representative Susan Davis asking the chairman of the House Judiciary Committee's Subcommittee on Courts, the Internet, and Intellectual Property to hold a hearing on H.R. 569, the Equal Justice for United States Military Personnel Act of 2009. h/t nbm3

Here's a link to Thomas's web page for the bill. The bill's text is available here.

Upcoming JAA American Inn of Court programs

In this week dominated by CAAF's Judicial Conference, it seems appropriate to talk about CLE. On 18 March, Chief Judge O'Toole of NMCCA will be speaking to the Judge Advocates Association American Inn of Court. His topic is "Trial Preparation by Reverse Engineering." Information should be available here. (In case that link isn't working, the program announcement is also posted here.)

On 8 April, the Deputy Judge Advocate General of the Army, Major General Daniel V. Wright, will be speaking to the Inn. His topic will be "Civility and Professionalism in the Courts."

Speaking of CLE, there's an ALI-ABA program coming up in Philly on 23 April that sounds interesting: Trials of the Century, featuring analysis of the O.J. case, the Scopes Monkey Trial, the Lindbergh kidnapping trial, Nuremberg, Clarence Darrow's L.A. Times bombing trial, and the Clinton impeachment.

I don't think I can justify taking the time away from work to go. On the other hand, I could train up and back in the same day and it is within walking distance of Morimoto--one of the Kabul Klipper's favorite restaurants . . . .

The Schweitzer and Ashby grants

As we previously noted, the Ashby case is being handled by a special CAAF panel consisting of former Chief Judges Everett, Cox, and Gierke, along with Acting Chief Judge Erdmann and Judge Stucky. We noted here the probable reasons why Judges Baker and Ryan recused themselves from the case, though the reasons for Chief Judge Effron's recusal aren't obvious.

Friday's daily journal entries, which were posted online today, let us know that the same special panel is also considering the Schweitzer case.

That special panel granted review of both cases on Friday, granting a whopping 13 issues between the two cases. Here are the granted issues in United States v. Schweitzer, No. 08-0746/MC:

WHETHER APPELLANT, BY PLEADING GUILTY, WAIVED HIS RIGHT TO AN UNBIASED AND IMPARTIAL CONVENING AUTHORITY; ASSUMING THERE WAS NO WAIVER, WHETHER THE CONVENING AUTHORITY WAS DISQUALIFIED DUE TO HIS INVOLVEMENT IN THE INVESTIGATION INTO THE MISHAP, HIS ROLE IN IDENTIFYING THE ORIGINAL CHARGES, AND THE FACT THAT HE TESTIFIED FOR OVER TWO HOURS DURING THE HEARING OF PRETRIAL MOTIONS AS TO MATTERS WHICH CALLED INTO QUESTION HIS CONTINUED PARTICIPATION IN APPELLANT'S CASE.

WHETHER A GUILTY PLEA TO THE OFFENSES OF ENGAGING IN CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN THROUGH CONSPIRACY TO OBSTRUCT JUSTICE AND OBSTRUCTION OF JUSTICE IS PROVIDENT WHEN THE "CRIMINAL PROCEEDING" IN ISSUE IS A FOREIGN CRIMINAL INVESTIGATION.

WHETHER IN UNITED STATES v. ALLENDE, 66 M.J. 142 (C.A.A.F. 2008), THIS COURT SHIFTED THE BURDEN OF PROVING HARMLESSNESS BEYOND A REASONABLE DOUBT TO APPELLANTS CLAIMING UNREASONABLE DELAY DURING THEIR ARTICLE 66(c), UNIFORM CODE OF MILITARY JUSTICE (UCMJ), REVIEW; IF SO, DOES ALLENDE'S BURDEN SHIFTING VIOLATE THE CONSTITUTION AND, IF SO, MUST AN APPELLANT RECEIVE MEANINGFUL RELIEF WHERE THE GOVERNMENT FAILED TO REBUT INFORMATION PROVIDED BY APPELLANT AS TO HIS EFFORTS TO PROCURE EMPLOYMENT COMMENSURATE WITH HIS EDUCATION AND JOB EXPERIENCE. IF ALLENDE'S BURDEN SHIFTING DOES NOT VIOLATE THE CONSTITUTION, DID THE LOWER COURT ERR IN FINDING THAT APPELLANT'S PROOF AS TO HIS EFFORTS TO PROCURE EMPLOYMENT COMMENSURATE WITH HIS EDUCATION AND JOB EXPERIENCE WAS INSUFFICIENT BECAUSE HE COULD NOT PRODUCE LETTERS THAT AFFIRMATIVELY STATED THAT HE WAS NOT HIRED BECAUSE HE DID NOT HAVE A DD-214.

WHETHER THE LOWER COURT ABUSED ITS DISCRETION BY FAILING TO GRANT RELIEF ON SENTENCING FOR ITS SELF-ADMITTED "GROSS NEGLIGENCE" IN FAILING TO PROVIDE APPELLANT AN EXPEDITIOUS ARTICLE 66(c), UCMJ, REVIEW, PARTICULARLY AS TO THE 33 MONTHS THAT ELAPSED PENDING COURT ACTION ON APPELLANT'S MOTION FOR ORAL ARGUMENT.

NMCCA's unpublished opinion in the case is available here. United States v. Schweitzer, No. NMCCA 200000755 (N-M. Ct. Crim. App. May 10, 2007).

Here are the NINE granted issues in Ashby:

WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT A CONVICTION UNDER ARTICLE 133, UNIFORM CODE OF MILITARY JUSTICE (UCMJ), FOR OBSTRUCTION OF JUSTICE OR CONSPIRACY TO OBSTRUCT JUSTICE.

WHETHER THE LOWER COURT ERRED IN AFFIRMING THE MILITARY JUDGE'S DECISION TO EXPAND THE TERM "CRIMINAL PROCEEDINGS" TO INCLUDE OBSTRUCTION OF FOREIGN CRIMINAL PROCEEDINGS.

WHETHER THE LOWER COURT ERRED IN AFFIRMING THE MILITARY JUDGE'S DECISION TO PERMIT FAMILIES OF THE VICTIMS OF THE GONDOLA CRASH TO TESTIFY ON SENTENCING.

WHETHER THE LOWER COURT ERRED IN SUMMARILY DISMISSING APPELLANT'S ARGUMENT THAT THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE MOTION FOR A MISTRIAL BASED ON THE TRIAL COUNSEL'S COMMENTS REFERENCING (1) APPELLANT'S INVOCATION OF HIS RIGHT TO REMAIN SILENT TO ITALIAN AUTHORITIES; AND (2) HIS GENERAL RIGHT TO REMAIN SILENT WITH RESPECT TO NOT DISCLOSING INFORMATION ABOUT THE VIDEOTAPE.

WHETHER THE LOWER COURT ABUSED ITS DISCRETION IN NOT FINDING THAT A SENTENCE WHICH INCLUDED SIX MONTHS OF CONFINEMENT AND AN APPROVED DISMISSAL WAS INAPPROPRIATELY SEVERE.

WHETHER THE LOWER COURT ERRED IN SUMMARILY DISMISSING APPELLANT'S ARGUMENT THAT THE DESTRUCTION OF THE VIDEOTAPE HAD NO EFFECT ON THE ADMINISTRATION OF JUSTICE BECAUSE IT CONTAINED NO MATERIAL EVIDENCE.

WHETHER APPELLANT'S DUE PROCESS RIGHTS HAVE BEEN VIOLATED BY THE UNTIMELY POST-TRIAL PROCESSING AND APPELLATE REVIEW OF HIS COURT-MARTIAL.

WHETHER THE LOWER COURT ERRED IN FINDING (1) THAT APPELLANT'S CASE WAS NOT TAINTED BY ACTUAL OR APPARENT UNLAWFUL COMMAND INFLUENCE; AND (2) THAT LTGEN PACE WAS NOT DISQUALIFIED TO ACT AS CONVENING AUTHORITY BY VIRTUE OF BEING A TYPE 2 AND TYPE 3 ACCUSER.

WHETHER THE LOWER COURT ERRED IN FINDING THAT THE CONVENING AUTHORITY DID NOT ABUSE HIS DISCRETION IN FAILING TO WITHDRAW THE ARTICLE 133, UCMJ, CHARGE FROM REFERRAL TO A GENERAL COURT-MARTIAL ONCE APPELLANT WAS ACQUITTED OF THE ORIGINAL CHARGES.

NMCCA's unpublished opinion in the case is available here. United States v. Ashby, No. NMCCA 200000250 (N-M. Ct. Crim. App. June 27, 2007).

In both cases, CAAF gave each party the option of resting on the briefing from the supp stage. It's my understanding that regardless of whether the parties file new briefs, the case will likely be argued this term, possibly in a sitting added after the last scheduled hearing date of 6 May.

Half a dozen grants

On Friday, CAAF granted plenary review in six cases. And it looks like the court is trying to squeeze all of them in this term. We've already looked at the grant and abbreviated briefing schedule in Nance, No. 09-0164/AF. It turns out that Nance is just one of two cases with abbreviated briefing schedules that will be argued on 27 April, with two more following on the 28th. Immediately after Nance, CAAF will hear oral argument in the newly granted case of United States v. Wilson, No. 09-0010/AR. The issue there is:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING APPELLANT'S CONVICTION FOR RAPE WHEN THE MILITARY JUDGE EXCEPTED "ON DIVERS OCCASIONS" FROM THE SPECIFICATION AND DID NOT SPECIFY THE SINGLE OCCASION AS PART OF THE FINDING, BUT THE VICTIM ONLY TESTIFIED TO A SINGLE OCCURRENCE AND THE PARTIES ONLY ARGUED THIS SINGLE OCCASION TO THE MILITARY JUDGE.

I can't find ACCA's opinion online.

The other four grants are all in naval cases. On 28 April, CAAF will hear oral argument in United States v. Mazza, No. 09-0032/NA. The issue there is: "WHETHER THE CIVILIAN DEFENSE COUNSEL WAS INEFFECTIVE BY: (1) SOLICITING HUMAN LIE DETECTOR TESTIMONY, (2) FAILING TO OBJECT TO ADMISSION OF THE VICTIM'S VIDEOTAPED INTERVIEW, AND (3) PERMITTING THE VIDEOTAPE TO BE VIEWED DURING DELIBERATIONS." I found a 2005 NMCCA opinion in the case sending the case back for a rehearing, but I couldn't find a later NMCCA opinion. Does anyone have a copy?

The other case set for 28 April is United States v. Bush, No. 09-0119/MC, with two granted issues:

WHETHER THE COURT OF CRIMINAL APPEALS' INTERPRETATION AND APPLICATION OF THIS COURT'S DECISION IN UNITED STATES v. ALLENDE, 66 M.J. 142 (C.A.A.F. 2008) PLACES IT AT ODDS WITH THIS COURT'S DECISION IN UNITED STATES v. GINN, 47 M.J. 236 (C.A.A.F. 1997).

WHETHER THE COURT OF CRIMINAL APPEALS MISINTERPRETED ALLENDE, CREATING THE PRACTICAL RESULT OF SHIFTING TO AN APPELLANT THE BURDEN OF PROVING THAT A CONSTITUTIONAL ERROR WAS HARMFUL.

NMCCA's opinion is published at 67 M.J. 508. We previously discussed it (at ridiculous length) here and here.

Today's other two grants were by the special Hall of Fame panel considering two convictions arising from the infamous February 1998 aviation mishap at Cavalese, Italy that killed 20 civilians. For reasons that will be immediately obvious to the No Man, I'm going to be offline until, oh, a bit after 2300. I'll post on the Schweitzer and Ashby grants then.

Vol. 62 of the Air Force Law Review online, with article about rehab evidence in sentencing

I think I saw a hard copy of Volume 62 of the Air Force Law Review at the Air Force JAG Corps' Keystone Conference in November. Now it's finally available online here.

Military justice practitioners will be interested in an article by Judge Charles E. Wiedie, Jr., of the Air Force Trial Judiciary, called Rehab Potential 101: A Primer on the Use of Rehabilitative Potential Evidence in Sentencing, 62 A.F. L. Rev. 43 (2008).

Any I-Law aficionados who have somehow stumbled across this blog will be interested in Captain Daniel P. Ridlon's article, Contractors or Illegal Combatants? The Status of Armed Contractors in Iraq, 62 A.F. L. Rev. 199 (2008).

(Anyone who's interested in reading the article on the impact of sales taxes on government procurement practices probably isn't among our highly elite readership.)

Friday was docket reloading day at CAAF

Friday's daily journal entries, available here, reflect major action by CAAF. I'll post the details later this evening.

Behenna Gets 25 years at GCM

As our fearless commenter pointed out, 1st Lt Michael Behenna was convicted last week at general court-martial of unpremeditated murder and sentenced to 25 years in jail. See UK reporting here (best coverage I could find). Behenna, for those keeping score, was accused of killing an Iraqi detainee in Tikrit along with SSgt Hal Warner. See prior posts here and here. As we reported last week, SSgt Warner pled guilty to assault, maltreatment of a subordinate and false official statement. He received a 17 month sentence and DD. See AP report here.

Here is the latest reporting on how the incident allegedly coccurred, as taken from the Warner plea

Another soldier, 1st Lt. Michael Behenna of Edmond, Okla., faces trial next week on a murder charge in the death of detainee Ali Mansour Mohammed in May 2008. Prosecutors say Behenna shot Mohammed, then used and incendiary grenade to burn the detainee's body. Warner admitted Wednesday to standing on the detainee's legs while he was defenseless during the assault then days later helping strip Mohammed naked and leaving him in the desert. Prosecutors say Behenna later shot the detainee.

See report here.

The report notes there is a post trial motion pending regarding Brady material, or at least I'll call it that. We'll see what the judge says---post-trial Brady motions don't exactly make me excited unless the defendant's name is Ted Stevens.

H/T Ama Goste, Ama Goste Facebook page (?).

This week in military justice -- 2009 Judicial Conference edition

This weekend marks the half-way point for CAAF's current term.

This Wednesday and Thursday is CAAF's judicial conference at the Catholic University of America's Columbus School of Law. The conference's schedule and registration materials are available here.

CAAF has no oral arguments scheduled for this week. Nor do any of the four CCAs.