Articles Posted in Supreme Court

SCOTUSBlog has an interesting post about the court’s relist practice.  Some of us discussed the relist option when the court was considering the petition in United States v. Sullivan,  74 M.J. 448 (C.A.A.F. 2015) cert. denied.

When last we wrote about the statistics of relists a little over a year ago, it was to report on what was then a new trend: the court’s practice of routinely relisting petitions that are under serious consideration for review at second or subsequent conferences prior to entering orders granting or denying certiorari. The practice is by now an accepted feature of the certiorari process, and at least one relist is generally viewed as a necessary step on the way to a grant of further review. Here, we offer an update on the statistics of relists. Focusing on October Term 2015, we highlight some emerging trends in what appears to be an evolving practice.

Regrettably, on 3 October 2016 the court declined to take Captain Sullivan’s petition.








In preparing the petition for Schloff, we looked to the amount of cases coming through the system related to prosecutions under UCMJ art. 120.

The Army is “reporting” about 60% of cases for last year were sexual assault/120 cases.  We have not been able to gain similar “information” from the Air Force or Department of the Navy.  Anyone know?

On 30 November 2015, the Supreme Court heard oral argument in Musacchio v. United States, a case of potential interest to military justice practitioners.

There are two questions presented.

(1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and

The problem is that the CCA’s don’t do that enough.  But at least they have the power.

In United States v. Quick:

The underlying issue is whether Article 66(d), UCMJ, authorizes the CCAs to order sentence-only rehearings. The government argues that the CCAs do not have that authority and asks that we overrule this court’s decision in United States v. Miller, 370 C.M.A. 296, 27 C.M.R. 10 (1956), in which we specifically recognized the authority of the CCAs to order sentence-only rehearings. The government asserts that Miller was wrongly decided in light of Jackson v. Taylor, 353 U.S. 569 (1957).

Professor Friedman has posted various amicus pleadings on his blog here.  He lists one not currently on the SCOTUSBlog for the case.  A little more here with Supreme Court cases with potential impact on military justice.  Professor Friedman does note as to his own filing:

There are a couple of passages that I would amend if I could, in which I refer to the "primary purpose" test and appear to assume that it governs a case like this. I believe a "reasonable anticipation" test is far preferable, and I am hoping that the "primary purpose" test will eventually recede, perhaps first by being confined to interrogations. The recent decision of the Michigan Supreme Court in People v. Fackelman,, which I expect to discuss in a post in the very near future, raises my hopes that this may turn out to be true.

SCOTUSBlog reports their “petition of the day,” which is a criminal evidence case with potential relevance to military justice practitioners – Childers v. Florida, if granted.

Issue two is:

2. Should the Court resolve a conflict in the Circuits and clarify whether its Confrontation Clause
precedents, Olden v. Kentucky, 488 U.S. 227 (1988), Delaware v. Van Arsdall, 475 U.S. 673 (1986), and
Davis v. Alaska, 415 U.So 308 (1974), permit a trial court to preclude cross-examination into the bias of a key witness on the ground that the trial court has allowed some cross-examination into bias.