Articles Tagged with extraordinary writ

A person being tried at court-martial may have their case dismissed before the members (jury) reach any findings. One way that can happen is when the military judge declares a mistrial. Your military defense lawyer should know what to do if the same charges are re-referred to a court-martial–the prosecution taking a second attempt to convict you.

In a recent case, we had that happen. Unlike uniformed defense counsel, we immediately filed a Writ of Mandamus and Prohibition to prevent the second trial. In Murillo, the Navy-Marine Corps Court of Criminal Appeals has agreed that (1) the court has jurisdiction to hear a Writ petition on this issue and (2) the military judge erred in declaring a mistrial. Thus, the court has dismissed the charges. (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

The Double Jeopardy Clause‘s whole concept is to protect the accused from a second or subsequent trial on the same charges. The trial itself is what is prohibited. The case is United States v. Murillo, No. 202200132 (N-M Ct. Crim. App. Feb. 3, 2023) (unpub.). The Double Jeopardy Clause is in the Fifth Amendment to the US Constitution, which says, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . ” The bar against double jeopardy comes from English common law, possibly from Roman law. See F. Ward, Double Jeopardy Clause of the Fifth Amendment. 26 Am. Crim. L. Rev. 1477 (1989). Ward points out that a double jeopardy challenge can be waived by a pretrial agreement because of a Supreme Court decision in United States v. Broce. The author suggests that the military judge should include in their inquiry about whether a waiver is knowing and intentional and whether the defendant understands that waiving the right to trial as part of a plea agreement is also waiving the double jeopardy claim.

It has been (fill in the blank) days since LTC Lakin has been denied some discovery and witnesses for his case.  His website has been updated in one place to say “Judge To Rule On Defense Request,” but the breaking news column still has the old verbiage, “Judge to Rules On Defense Request.”  Of course we all know the judge has ruled.  The point is though that someone is updating the site.  The ruling has been adverse to LTC Lakin.  I think we can say that the site managers have deliberately avoided placing adverse information on the site.  Here’s some questions.

LTC Lakin and his attorney are advertising the case on the internet and a website is being used to solicit funds for LTC Lakin’s defense (we can take issue with the purported amount, compare for example an estimate of $100,000.00 to defend PFC Bradley Manning the Wikileaks accused).  Mr. Jensen’s website links back to safeguardourconstitution “For More Information Visit the Case Site.”  Is the advertising for funds truthful at this point, if the advertising is not truthful at this point is LTC Lakin himself complicit in a lack of truthfulness, and if LTC Lakin is complicit in this is he acting as an officer and a gentleman?  At what point, if any, and I think this question goes beyond LTC Lakin, is a client responsible for “advertising” about their case which is ongoing?  At what point is an attorney responsible for the accuracy of his or her advertising about a case they have ongoing?  To what extent is advertising about an ongoing case consistent with Rule 3.6 of the Army (or similar other Service rule) professional responsibility rules – AR 27-26.  As we bloggers know the Army has been reluctant to publically discuss and/or release LTC Lakin’s case.

Subsequent to the 2 September 2010 ruling LTC Lakin through counsel has said publically a number of times that an extraordinary writ will be filed.  To date no writ appears to have been filed.  The next scheduled event is for an Article 39(a), UCMJ, hearing on 28 September 2010.  So now what?

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