This Week in Military Justice – October 23, 2016
This week at SCOTUS: Last Monday a petition for certiorari was filed in Howell v. United States, No. 16-536. In Howell v. United States, 75 M.J. 386 (C.A.A.F. Jul. 19, 2016) (CAAFlog case page), CAAF unanimously affirmed that a CCA has jurisdiction to consider a Government petition for extraordinary relief under the All Writs Act, but split 3-2 to find that the military judge erred in finding that the Government violated the Article 13 prohibition against pretrial punishment in connection with a pay dispute.
I'm not aware of any other military justice developments at the Supreme Court, where I'm tracking two cases:
- Sterling v. United States, No. 16A353 (cert. pet. due Dec. 23) (CAAFlog case page)
- Howell v. United States, No. 16-536 (cert. pet. filed Oct. 17; resp. due Nov. 21) (CAAFlog case page)
This week at CAAF: CAAF will hear oral argument in four cases this week:
Tuesday, October 25, 2016, at 9:30 a.m.:
United State v. Fetrow, No. 16-0500/AF (CAAFlog case page)
I. Whether the Air Force Court of Criminal Appeals committed legal error when it found that in order for conduct to constitute child molestation under Mil. R. Evid. 414, the conduct must have been an offense under the UCMJ, or federal or state law, at the time it was committed and, if offered under Mil. R. Evid. 414(d)(2)(a)-(c), that the conduct must meet the definition of an offense listed under the version of the applicable enumerated statute in effect on the day of trial.
II. Whether the Air Force Court of Criminal Appeals committed legal error when it found that the erroneous admission of two acts of indecent liberties committed by appellee on his child age daughter had a substantial influence on the members' verdict requiring set aside of the findings and sentence.
• AFCCA's opinion (75 M.J. 574)
• Blog post: A significant Mil. R. Evid. 414 decision
• Appellant's (Government) brief
• Appellee's brief
• Appellant's (Government) reply brief
• Blog post: Argument preview
United States v. Dockery, No. 16-0296/AF (CAAFlog case page)
I. Whether the military judge erred by granting, over defense objection, the Government's challenge for cause against MSgt LW.
II. Whether the Air Force Court of Criminal Appeals erred by finding that the military judge did not err, and by concluding that even if the military judge did err there was no prejudice, contrary to this court's precedent in United States v. Peters, 74 M.J. 31 (C.A.A.F. 2015), United States v. Woods, 74 M.J. 238 (C.A.A.F. 2015), United States v. Nash, 71 M.J. 83 (C.A.A.F. 2012), United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007), and United States v. Dale, 42 M.J. 384 (C.A.A.F. 1995).
Wednesday, October 26, 2016, at 9:30 a.m.:
United States v. Gomez, No. 16-0336/CG (CAAFlog case page)
Issue: Whether the military judge erred by permitting two complaining witnesses to testify on sentencing that appellant was responsible for their pregnancy complications with no evidence connecting his misconduct to the complications.
United States v. Wilson, No. 16-0267/AR (CAAFlog case page)
Issue: Whether the military judge erred in denying the defense motion for appropriate relief under Rule for Court-Martial 917 where the military judge improperly applied Article 130, housebreaking, to a motor pool.
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 17, 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's website shows no scheduled oral arguments.
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