This week in military justice -- 12 July 2009 edition

This week at the Supremes: There are no anticipated military justice developments at the Supremes this week.

This week at CAAF: CAAF has completed oral arguments for the term. By my count, seven cases argued this term have yet to be decided: Loving, Smead (which resulted in a post-argument order directing additional briefing), Matthews, Mazza, Bush, Ashby, and Schweitzer.

This week at the CCAs: None of the four CCAs' oral argument calendars lists an argument for this week.

This week in military justice -- 5 July 2009 edition [CORRECTED]

This week at the Supremes: No military justice developments are expected at the Supremes this week, though I wouldn't be surprised to see the SG seek and the Supremes grant an extension of the deadline for filing the SG's response that the Supremes called for in Rodriguez v. United States, No. 08-1465. (The response is due 15 July.)

This week at CAAF: CAAF has completed oral arguments for the term. The court will presumably decide all of its pending cases between now and 31 August. By my count, there are nine argued cases that have yet to be decided. It appears that CAAF will issue just 46 opinions of the court this term.

This week at the CCAs: Though it's not on AFCCA's online oral argument calendar, the court will hear oral argument in United States v. Seldes on Wednesday. Bill Cassara will argue for the appellant.

This week in military justice

This week at the Supremes: The Supremes are done with their military justice work for the term. The fate of the three pending military cert petitions -- Wuterich v. United States, No. 08-1133; Rodriguez v. United States, No. 08-1465; and Stephens v. United States, No. 08-1514 -- will probably be decided at the 29 September 2009 conference and certainly not before then. [Familiar disclaimer: I'm counsel of record for the petitioner in both Wuterich and Stephens.)

This week at CAAF: CAAF is done with oral arguments for the term.

This week at the CCAs: ACCA will hear three oral arguments tomorrow. First up is United States v. Pettibone, No. ARMY 20070485, where the assignment of error being argued is: "THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT THE FINDINGS OF GUILTY FOR ASSAULT WITH A DANGEROUS WEAPON IN THE SPECIFICATION OF CHARGE I AND FOR MAIMING IN THE SPECIFICATION OF CHARGE II WHERE THE GOVERNMENT FAILED TO PROVE THAT APPELLANT DID NOT ACT IN SELF DEFENSE." ACCA will then hear argument in United States v. Markis, No. ARMY 20070580 (a civilian counsel case), where the assignments of error being argued are: "THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION FOR RAPE"; "THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE IMPROPERLY EXCLUDED SGM RICHARDSON FROM THE PANEL FOR CAUSE"; and "THE MILITARY JUDGE VIOLATED M.R.E. 704 WHEN HE WOULD NOT ALLOW THE DEFENSE EXPERT, DR. CHRISTIAN MEISSNER, TO PRESENT AN EXPERT OPINION ON WHETHER SSG MARKIS WOULD BE SUBJECT TO HEIGHTENED SUGGESTIBILITY AND MANIPULATION AS A RESULT OF THE INTERROGATIONS HE UNDERWENT." Tomorrow afternoon, ACCA will hear oral argument in United States v. Clark, No. ARMY 20070957, on this assignment of error: "THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUSTAIN APPELLANT’S CONVICTION FOR RAPE."

This week in military justice -- 21 June 2009 edition

This week at the Supremes: There are no expected military justice developments at the Supremes this week.

This week at CAAF: CAAF will hold oral argument in the twin Aviano cases of United States v. Ashby, No. 08-0770/MC, and United States v. Schweitzer, No. 08-0746/MC, on Wednesday. The many issues in the cases are synopsized here. The argument will be a melancholy event since Judge Everett was to have sat on the court for both cases. I don't know who will sit in his place; it could be another CAAF senior judge, acting Chief Judge Erdmann could ask Chief Justice Roberts to designate an Article III judge to sit with CAAF pursuant to Article 140(f), or the court could sit with just four judges, which would give an advantage to the government. (If just four judges sit, a tie vote affirms the lower court's judgment, which would mean that the government would need only two votes to prevail rather than three; essentially, the missing judge is spotted to the party that prevailed below, in these cases the government.)

This week at the CCAs: On Thursday, NMCCA will set en banc to hear the government's second Article 62 appeal in the case of United States v. Wuterich. The issues to be argued deal with the existence of a qualified reporter's privilege. The court will hear argument from counsel for the United States and for CBS. Counsel for SSgt Wuterich (of which I am one) haven't taken a position on the issues being argued and respectfully declined NMCCA's offer to let them participate in the argument. A synopsis of the case is available here. On Friday, AFCCA will hear oral argument in United States v. Streete. The issues to be argued are:

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I. WHETHER EITHER THE MILITARY JUDGE OR APPELLANT'S TRIAL DEFENSE COUNSEL ALLOWED SPILLOVER TO UNDULY PREJUDICE APPELLANT'S RIGHT TO A FAIR TRIAL.

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II. WHETHER APPELLANT'S SENTENCE THAT INCLUDED EIGHT YEARS CONFINEMENT AND A DISHONORABLE DISCHARGE IS HIGHLY EXCESSIVE.

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III. WHETHER APPELLANT'S CONVICTION TO ADDITIONAL CHARGE II AND ITS SPECIFICATION, ALLEGING THE VIOLATION OF A "NO CONTACT" ORDER IS LEGALLY AND FACTUALLY SUFFICIENT.

This week in military justice -- Cox Commission II edition

This week at the Supreme Court: The Supreme Court has nothing military justice related on its plate until next week's conference, for which the Rodriguez cert petition, No. 08-1465, has been distributed. We'll be monitoring Rodriguez to see if there's a call for a response from the SG.

This week at CAAF: CAAF has no oral arguments scheduled this week. Judge Everett's funersal service will be held on Tuesday and a visitation is scheduled for Monday evening, both in Durham. In lieu of flowers, donations may be sent to the First Presbyterian Church, 305 East Main Street, Durham, NC 27701, for the Robert Daye Habitat for Humanity House.

This week at the CCAs: The Coast Guard Court of Criminal Appeals will hold oral argument on Wednesday in United States v. Usry. The assignment of error being argued is: "The military judge erred by failing to order further inquiry into Appellant's competency to stand trial." I understand that the issue involves whether a second 706 board was required due to the accused's actions on the day of trial.

This week in military justice events: The second Cox Commission will hold a public hearing at 0900 on Tuesday, 16 June in the GWU law school's moot courtroom.

This week in military justice -- 7 June 2009 edition

This week at the Supreme Court: Our Denedo lookout remains perched in the CAAFlog crow's nest. Stay tuned for a cry of "Denedo ho!" about 1000 tomorrow.

This week at CAAF: CAAF has no oral arguments scheduled this week.

This week at the CCAs: None of the CCAs will be hearing oral argument this week.

This week in Congress: The House Judiciary Committee's Subcommittee on Courts and Competition Policy will hold a hearing on Thursday at 1000 on H.R. 569, a bill that would expand the Supreme Court's certiorari jurisdiction over court-martial cases.

This week in military justice -- 31 May 2009 edition

This week at the Supremes: Tomorrow is an opinion announcement day. All eyes will be on SCOTUS at 1000 to see if it releases the Denedo opinion.

This week at CAAF: CAAF will not be hearing oral arguments this week.

This week at the CCAs: None of the CCAs is scheduled to hear oral argument this week.

This week in military justice -- 24 May 2009 edition

This week at the Supremes: We're ordering our Denedo lookout aloft. Tuesday is an opinion announcement day. It is also the first announcement day when I think there's a chance that Denedo might come out. (Look at the three opinions the Court released on 4 May. Two were argued on 24 February, one on 25 February, and one (Arthur Anderson LLP v. Carlisle) on 4 March. Arthur Anderson was a split decision (6-3); I expect Denedo will be split as well. On Tuesday, one more day will have elapsed since Denedo was argued than passed between the argument and decision in Arthur Anderson.) Each of the five Mondays in June is also a scheduled opinion announcement day.

This week at CAAF: CAAF has no scheduled arguments this week. I'll be checking CAAF's oral argument page this week to see whether, as I suspect will happen, CAAF inserts an argument in United States v. Neal, No. 09-5004/NA, into this term's schedule. (For more on Neal, see, e.g., here.) This Wednesday afternoon, CAAF will be the site of the Pentagon Chapter of the FBA's end o' oral argument season reception. See here for more details.

This week at the CCAs: On Thursday, ACCA will hear oral argument in United States v. Vosicky, No. 20070874. Here's the assigned error that's being argued:

THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE APPLIED AN INCORRECT HEIGHTENED STANDARD TO WITNESS PRODUCTION WHICH DENIED APPELLANT HIS CONSTITUTIONAL AND STATUTORY RIGHT UNDER THE SIXTH AMENDMENT TO THE CONSTITUTION, RULE FOR COURTS-MARTIAL 703, AND ARTICLE 46, UCMJ TO PRODUCTION OF WITNESSES WHO WOULD HAVE OFFERED EVIDENCE TO NEGATE THE GOVERNMENT'S EVIDENCE OR SUPPORT THE DEFENSE.

No other CAAF oral arguments are scheduled. (Having been tracking the CCA oral arguments for some time now, it appears that ACCA holds far more than do the other three CCAs.)

Next week in military justice -- 15 May 2009 edition

I'll be in court next week--possibly for the whole week--so I don't expect to be blogging again anytime soon. I hope that my colleagues will keep you informed, including concerning developments in the Green capital MEJA prosecution.

Next week at the Supremes: Monday's order list will likely include cert denials for the two military capital cert petitions of Burton v. United States, No. 08-1270, and Brown v. United States, No. 08-9714.

Next week at CAAF: CAAF has no scheduled oral arguments next week.

Next week at the CCAs: There are no scheduled CCA oral arguments next week.

Next week at the trial level: On Monday, a motions hearing will be held in the capital retrial of United States v. Walker. The case is being tried at Quantico. Also on Monday, the defense's sentencing case resumes in the capital MEJA trial of United States v. Green. The case is expected to go to the jury by Wednesday.

This week in military justice -- 10 May 2009 edition

This week at the Supreme Court: Two military cert petitions have been circulated for Thursday's conference: Burton v. United States, No. 08-1270, and the pro se IFP cert petition in Brown v. United States, No. 08-9714. Both will almost certainly result in denial of cert.

This week at CAAF: CAAF has no oral arguments scheduled for this week.

This week at the CCAs: ACCA will hear oral argument on Thursday in United States v. Goodwin, No. 20011125. Here are the two assignments of error being argued: "I. Appellant's trial defense counsel was ineffective when he informed the members during his opening statement that the crimes occurred because appellant was desperate for money, he failed to cross examine government witnesses, and he conceded appellants actions were 'misleading' in his closing argument. II. It took the government from 7 April 2006 to 19 December 2007 to conduct and prepare the record for appellant's Dubay hearing, and this dilatory delay warrants relief."

This week at the trial level: The penalty phase will start on Monday in the capital MEJA prosecution of United States v. Green in U.S. district court in Kentucky.

This week in military justice -- 3 May 2009 edition

This week at the Supremes: The Supremes have a session scheduled for tomorrow during which it may announce one or more opinions. It's possible that Denedo could be announced, though it's probably still too soon after oral argument for a decision in the case. After tomorrow, the next scheduled opinion announcement date is 18 May.

This week at CAAF: CAAF's oral argument calendar indicates that sessions are scheduled for Tuesday and Wednesday. But no cases are scheduled to be heard on those dates. Presumably there will be no actual sessions on those days.

This week at the CCAs: On Wednesay, ACCA is scheduled to hear oral argument in United States v. Goodwin, No. ARMY 20011125. The assignments of error to be argued are:

I. Appellant's trial defense counsel was ineffective when he informed the members during his opening statement that the crimes occurred because appellant was desperate for money, he failed to cross examine government witnesses, and he conceded appellant's actions were "misleading" in his closing argument.

II. It took the government from 7 April 2006 to 19 December 2007 to conduct and prepare the record for appellant's Dubay hearing, and this dilatory delay warrants relief.

This week in military justice -- 26 April 2009 edition

This week at the Supreme Court: No military justice items appear on the Court's schedule this week. Our Denedo lookout is starting his stretching exercises so he'll be ready when we send him up to the CAAFlog crow's nest.

This week at CAAF: CAAF will hear four oral arguments this week. Tomorrow's first argument is in United States v. Nance, No. 09-0164/AF, where the granted issue is "WHETHER APPELLANT'S PLEA OF GUILTY TO ENGAGING IN CONDUCT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE WAS IMPROVIDENT BECAUSE OF A LACK OF EVIDENCE IN THE RECORD INDICATING THAT HIS CONDUCT WAS DIRECTLY PREJUDICIAL TO GOOD ORDER AND DISCIPLINE." Tomorrow's second argument is in United States v. Wilson, No. 09-0010/AR, where the granted issue 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." CAAF will hear two more arguments on Tuesday. The first is in United States v. Mazza, No. 09-0032/NA, where the granted issue 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." The final CAAF argument of the week will be in United States v. Bush, No. 09-0119/MC, where the granted issues are: I. "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)"; and II. "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."

This week at the CCAs: On Wednesday, ACCA will hear oral argument in United States v. Lockhart, No. ARMY 20070689. Four assignments of error will be argued: "I. THE COURT-MARTIAL LACKED PERSONAL JURISDICTION OVER APPELLANT BECAUSE THE APPELLANT'S BREAK IN ACTIVE DUTY SERVICE TERMINATED JURISDICTION"; "IV. THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN SHE FAILED TO GIVE APPROPRIATE SENTENCE INSTRUCTIONS"; "V. THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT THE FINDING OF GUILTY TO FORGERY WHERE NO EVIDENCE SHOWS THAT THE LEASE, IF GENUINE, OPERATED TO THE LEGAL HARM OF ANOTHER, FURTHERMORE, THE LEASE DOCUMENT WAS OF NO LEGAL EFFICACY"; and "VI. THE MILITARY JUDGE ABUSED HER DISCRETION WHEN SHE ADMITTED APPELLANT'S FEDERAL INCOME TAX RETURNS INTO EVIDENCE OVER APPELLANT'S OBJECTION."

This week at the trial level: All eyes will be on Paducah, Kentucky this week, where the trial on the merits in the capital MEJA prosecution of former Army PFC Steven Green is set to start tomorrow.

This week in military justice

None of the military appellate courts is scheduled to hear oral argument this week.

As always, we'll be on the lookout for CAAF decisions, published CCA decisions, and CAAF grants. It's probably too early to send our Denedo lookout up to the CAAFlog crow's nest. According to these statistics from SCOTUSblog, the Supremes have decided or dismissed 12 fo the 14 cases heard during the October sitting, 10 of the 13 cases heard during the November sitting, 6 of the 12 cases heard during the December sitting, 5 of the 11 cases heard during the January sitting, 3 of the 12 cases heard during the February sitting, and none of the 6 cases (including Denedo) heard during the March sitting.

As always, if you're aware of any signficant upcoming military justice events -- including significant courts-martial -- please let us know. You can reach us at [email protected].

This week in military justice -- 11 April 2009 edition

This week at the Supremes: There are no scheduled military justice developments at the Supremes this week. It's probably still too early to post a watch for a decision in Denedo.

This week at CAAF: CAAF will hear oral arguments in four cases this week. Tuesday's first argument will be in United States v. Matthews, No. 08-0613/AR, where the granted issue is "WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT MIL. R. EVID. 509 DOES NOT BAR THE GOVERNMENT FROM CALLING THE MILITARY JUDGE FROM A JUDGE-ALONE TRIAL TO TESTIFY AT A DuBAY HEARING AS TO HIS DELIBERATIVE PROCESS." Tuesday's second oral argument is in United States v. Marshall, No. 08-0779/AR, where the granted issue is "WHETHER THE MILITARY JUDGE'S FINDING BY EXCEPTIONS AND SUBSTITUTIONS CREATED A MATERIAL FATAL VARIANCE IN CHARGE III AND ITS SPECIFICATION [ESCAPE FROM CUSTODY]." Wednesday's first argument is United States v. Sanders, No. 09-0013/AF, where the granted issue is "WHETHER THE MILITARY JUDGE ERRED BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE IN VIOLATION OF R.C.M. 1001 AND MIL. R. EVID. 403." And CAAF's final argument of the week is United States v. Wiechmann, No. 09-0082/MC, where the granted issue is "WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO COUNSEL WHEN THE CONVENING AUTHORITY AND STAFF JUDGE ADVOCATE FAILED TO RECOGNIZE ONE OF HIS TWO DETAILED DEFENSE COUNSEL."

This week at the CCAs: It doesn't appear that any of the CCAs have oral arguments scheduled this week.

This week in CLE: On Tuesday at 1200, NIMJ will hold a program on openness of courts-martial at the American University's Washington School of Law.

This week in military justice -- 5 April 2009 edition

This week at the Supreme Court: I know of no expected military justice activity at the Supremes this week.

This week at CAAF: CAAF has no scheduled oral arguments this week.

This week at the CCAs: ACCA will be hearing oral argument on Wednesday in United States v. McNaughton, No. ARMY 20090089, on this assignment of error: "The military judge erred as a matter of law when she dismissed Specification 2 of Charge II on the grounds that assimilation of a state aggravated incest statute is preempted by Article 120, UCMJ."

This week at the court-martial trial level: The court-martial of Sgt Ryan Weemer for allegedly shooting an unarmed detainee during combat operations in Fallujah will likely go to the members early this week.

This week in CLE: On Thursday, the JAA American Inn of Court will present a lecture by Major General Daniel V. Wright, the Deputy Judge Advocate General of the Army, called "Civility and Professionalism in the Courts."

TWIMJ update

Here are the issues to be argued before the Air Force Court on Wednesday in United States v. Gurry, No. ACM 37145:

I. Whether the Appellant received ineffective assistance of counsel when he was not advised by his defense attorneys that he could testify to rebut both new testimony and testimony emphasized by repetition through questioning by the members after they recalled five of six Government witnesses during deliberations.

II. Whether the Appellant was denied his rights to due process and to present a defense when he was not advised that he could testify to rebut both new testimony and testimony emphasized by repetition through questioning by the members after they recalled five of six Government witnesses during deliberations.

III. Whether the court-martial was without jurisdiction because the Commander, 72d Air Base Wing, had no authority to convene a general court-martial when he purportedly modified the convening order on 1 June 2007 and when the court was assembled on 12 June 2007, after such authority had been withdrawn effective 30 May 2007 by the Secretary of the Air Force.

VI. [not a typo] Whether Specification 4 failed to state an offense because it did not give proper notice and was void for vagueness.

This week in military justice -- 28 March 2009 edition

This week at the Supreme Court: I know of no expected military justice activity at the Supreme Court this week.

This week at CAAF: CAAF has no oral arguments this week. If any opinions or grants are announced this week, we will post them.

This week at the CCAs: This is a busy week for CCA oral arguments, with three of the four CCAs hearing a case. On Tuesday, ACCA will hear oral arugment in United States v. Perez, No. ARMY 20071308. The assignment of error being argued in Perez is: "THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION OF MALTREATMENT UNDER ARTICLE 93, UCMJ, (THE SPECIFICATION OF CHARGE II) BECAUSE THE COMMENTS MADE WERE NEITHER SEVERE NOR PERVASIVE ENOUGH TO RISE TO THE LEVEL OF MALTREATMENT." On Wednesday, AFCCA will be hearing oral argument in United States v. Gurry. Jack Zimmerman will be orally arguing the case for the appellant. I'll post the precise issues to be orally argued tomorrow, but the principal issue in the case is an IAC claim based on allegedly inadequate advice provided to the accused during trial. Also on Wednesday, the Navy-Marine Corps Court will be hearing oral argument on an Article 46 issue in United States v. Delgado: "WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING APPELLANT'S REQUESTS FOR ADDITIONAL EXPERT ASSISTANCE IN THE FIELDS OF OPHTHALMOLOGY, NEUROLOGY, AND FORENSIC PATHOLOGY?" Sorry, but I don't know whether LT Delgado will be representing the United States in Delgado.

This week in military justice -- Denedo oral argument edition

This week at the Supremes: The Supreme Court will hear oral argument in United States v. Denedo, No. 08-267, at 1000 Wednesday. SCOTUSblog provides this link to a listing of counsel for March oral arguments. Assistant to the Solicitor General Pratik A. Shah will argue for the United States and Matthew S. Freedus will argue for Denedo. I'll be there. I hope to post some thoughts about the argument Wednesday evening.

This week at CAAF: CAAF's web site is down, but my recollection is that it has no arguments scheduled for this week.

This week at the CCAs: ACCA will hear oral argument on Friday in United States v. Clagett, No. ARMY 20070082. The assignment of error being argued is: "APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE DEFENSE COUNSEL AND THE CIVILIAN DEFENSE COUNSEL WERE PREJUDICIALLY DEFICIENT IN THE PRETRIAL INVESTIGATION AND SUBSEQUENT ADVISING OF APPELLANT ON EVIDENCE THAT WAS AVAILABLE TO SUPPORT HIS CASE WHICH RESULTED IN THEIR DESIRE TO HAVE APPELLANT ENTER A PLEA OF GUILTY. IN ADDITION THE DEFENSE COUNSEL AND CIVILIAN DEFENSE COUNSEL WERE INEFFECTIVE IN THE PRESENTATION OF THE SENTENCING CASE."

Next week in military justice

In Great Santini fashion, I'll be starting a family vacation at a ridiculously early hour tomorrow. My blogging volume will be greatly reduced over the next week. So I'm getting a jump on Sunday with a special "Next week in military justice."

Next week at the Supreme Court: The SCOTUS military justice event of the decade will be the week after next when Denedo is argued on 25 March.

Next week at CAAF: CAAF will hear two oral arguments next week, both on St. Patrick's Day and both in Marine cases. I would speculate that CAAF was trying to ensure that counsel would be wearing green, but the appellate government counsel in the second case is a Navy officer. (A scheduled 16 March oral argument sitting was scratched from the calendar.) The first oral argument will be in United States v. Weston, No. 08-0594/MC, where the granted issues are:

I. WHETHER THE LOWER COURT ERRED IN HOLDING THAT GEORGIA v. RANDOLPH, 547 U.S. 103 (2006), DOES NOT APPLY TO THE CONSENT SEARCH OF APPELLANT'S MARITAL HOME WHERE AGENTS FROM THE MARINE CORPS' CRIMINAL INVESTIGATION DIVISION (CID) FIRST RECEIVED APPELLANT'S UNEQUIVOCAL OBJECTION TO A SEARCH OF HIS MARITAL HOME AND THEN OBTAINED CONSENT FROM APPELLANT'S WIFE, BOTH OF WHOM WERE PHYSICALLY LOCATED IN SEPARATE INTERROGATION ROOMS IN CID'S BUILDING ON MARINE CORPS BASE HAWAII, KANEOHE BAY, HAWAII.

II. WHETHER, ASSUMING ARGUENDO THAT THE SEARCH OF APPELLANT'S MARITAL HOME WAS UNREASONABLE IN LIGHT OF GEORGIA v. RANDOLPH, 547 U.S. 103 (2006), THE LOWER COURT ERRED IN HOLDING THAT THE INEVITABLE DISCOVERY EXCEPTION TO THE EXCLUSIONARY RULE WOULD ALLOW ADMISSION OF THE SEIZED EVIDENCE.

NMCCA's en banc opinion is published at 66 M.J. 544.

The second case is United States v. Paige, No. 08-0805/MC, in which the granted issue is: "WHETHER TRIAL COUNSEL COMMITTED PLAIN ERROR DURING HIS CLOSING ARGUMENT ON THE MERITS WHEN HE COMMENTED THAT THE GOVERNMENT'S EVIDENCE WAS UNCONTRADICTED, THEREBY INDIRECTLY COMMENTING ON APPELLANT'S FAILURE TO TESTIFY AND PRODUCE EVIDENCE IN HIS DEFENSE."

NMCCA's unreported decision in the case is available here.

Next week at the CCAs: ACCA will hear oral argument on St. Patrick's Day in United States v. McLester, No. ARMY 20070415, on this assignment of error: "THE MILITARY JUDGE ERRED IN ADMITTING EVIDENCE OF UNCHARGED MISCONDUCT UNDER MILITARY RULE OF EVIDENCE 404(b) AND THE ADMISSION OF THAT EVIDENCE SEVERELY PREJUDICED APPELLANT BY PREVENTING HIM FROM RECEIVING A FAIR TRIAL."

Also next week, on Wednesday Chief Judge O'Toole of NMCCA will be making a presentation to the JAA American Inn of Court called, "Trial Preparation by Reverse Engineering." Information about the event is available here.

Next week at the court-martial trial level: We understand that the military judge in the Behenna case is expected to hear post-trial oral argument on a Brady violation allegation on Friday.

This week in military justice -- 8 March 2009 edition

This week at the Supreme Court: The deadline for the Solicitor General's reply brief in Denedo is Wednesday. We'll post a copy once we get access to it.

This week at CAAF: No oral arguments are scheduled at CAAF this week.

This week at the CCAs: AFCCA will hear an oral argument tomorrow in a self-incrim case. The issue in United States v. Cahall, No. ACM S31458, is "WHETHER APPELLANT'S STATEMENTS TO AFOSI SHOULD HAVE BEEN SUPPRESSED WHEN THEY FOLLOWED HIS INVOCATION OF HIS RIGHTS TO REMAIN SILENT AND TO CONSULT AN ATTORNEY AND HIS REQUESTS WERE NOT 'SCRUPULOUSLY HONORED.'"

This week at the court-martial trial level: A ruling is expected tomorrow on the defense's motion for mistrial due to a Brady violation in United States v. Behenna, which resulted in an unpremeditated murder conviction and 25-year sentence last week.