This Week in Military Justice – October 16, 2016
This week at SCOTUS: An extension of time to file a petition for certiorari was granted in Sterling v. United States, No. 16A353. In the Marine Corps case of United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016) (CAAFlog case page), CAAF concluded that Lance Corporal Sterling's disobedience of an order could qualify for protection under the Religious Freedom Restoration Act (RFRA) but that she failed to establish that the order substantially burdened her exercise of religion.
I'm not aware of any other military justice developments at the Supreme Court, where I'm tracking one case:
This week at CAAF: The next scheduled oral argument at CAAF is on Tuesday, October 25, 2016.
This week at the ACCA: The next scheduled oral argument at the Army CCA is on November 4, 2016.
This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 22, 2016.
This week at the CGCCA: The Coast Guard CCA's oral argument schedule shows no scheduled oral arguments.
This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, October 20, 2016 at 10 a.m.:
United States v. Gebert
Summary: A military judge sitting as general court-martial convicted the appellant, contrary to his pleas, of one specification of communicating a bomb threat, in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2012). The military judge sentenced the appellant to confinement for seven months, reduction to pay grade E-1, and a bad conduct discharge. The convening authority approved the sentence as adjudged and, except for the punitive discharge, ordered the sentence executed.
I. COMMUNICATING A THREAT REQUIRES A PURPOSEFUL AND INTENTIONAL MENS REA. THE MILITARY JUDGE ONLY REQUIRED A MENS REA OF RECKLESSNESS. DID THE MILITARY JUDGE ERR BY APPLYING A LESSER MENS REA TO THE COMMUNICATING A THREAT SPECIFICATION?
II. THE GOVERNMENT WAS REQUIRED TO PROVE A PURPOSEFUL AND INTENTIONAL MENS REA BEYOND A REASONABLE DOUBT. APPELLANT'S COMMUNICATION WAS OBJECTIVELY AND SUBJECTIVELY MADE IN JEST. WAS THE EVIDENCE FACTUALLY AND LEGALLY SUFFICIENT?
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