More Than 40 Years Dedicated Exclusively to Military Law | Learn More About Philip D. Cave

Certain retirees are not subject to court-martial jurisdiction, so says Judge Richard J. Leon of the United States District Court for the District of Columbia in Larrabee v. Braithwaite. We should anticipate the circuit court and the Supreme Court will get to tell us their view.

After briefing and oral argument, the judge entered his judgement (Memorandum Opinion) on the pleadings.

The court begins with the proposition that,

Breaker Morant—who has not heard of him, especially for those attending NJS after the 1980’s film Breaker Morant was released. The Sydney Morning Herald (Aust.) has a book review, Peter Fitzsimmons, Breaker Morant. Hachette (2020).

Hero, scapegoat, or villain—you decide.

The subject of Peter FitzSimons’ latest work is Harry ‘‘Breaker’’ Morant, an Englishman who holds the dubious honour of being Australia’s most famous war criminal. A lieutenant in the irregular Bushveldt Carbineers, Morant was convicted in 1902 by a British Army court martial (along with Australians Peter Handcock and George Witton) for his role in the murders of civilians and surrendered combatants during the Second Anglo-Boer War. Witton received a life sentence, later commuted; Morant and Handcock were executed by firing squad.

Worth the Read, Doug Stout, Veterans column: Newark’s Scott found guilty of mutiny. Newark Advocate.

United States v. Scott is due to be argued before the Court of Appeals for the Armed Forces pm 17 November 2020. The issue is whether Appellant’s trial defense counsel were ineffective by failing to introduce substantial positive character evidence and combat service on sentencing.

In United States v. Demerse, No. 900529R, 1992 CMR LEXIS 511 (N.M.C.M.R. Apr. 20, 1992), the Navy-Marine Corps Court of Military Review summarily affirmed the findings and sentence. The court did not address Issue IV which was,

Exercising his authority under 10 U.S.C. § 825, a military commander hand-selected ten White members to sit on a general court-martial panel—the military equivalent of a jury—for a Black man charged with sexual misconduct against White women.  Before selecting this all-White panel, the commander received a report showing the White women first identified their perpetrator not by a name, but by the color of his skin: Black. As the members entered the courtroom, the accused Black man, Hospital Corpsman Petty Officer Second Class (HM2) Pedro Bess, leaned towards his counsel and asked about the panel’s racial composition. His counsel stood, presented the issue to the military judge, challenged the panel on equal protection grounds, and moved for discovery. Reasoning that she could not see the members’ race, the military judge found no issue with the all-White panel. Later, the hand-selected White members convicted HM2 Bess. The lower courts affirmed without additional fact-finding, and to date, no one has answered HM2 Bess’s question about his panel:

“Why aren’t there any Black people?”

The Questions Presented are: (1) Whether 10 U.S.C. § 825, which allows a military commander to hand select members to sit on a general court-martial panel, as applied in Pedro Bess’ case — in which an all-white panel convicted a Black defendant of sexual misconduct against a white woman — violates the Fifth Amendment; and (2) whether the lower court erred in declining to remand Bess’ case for additional factfinding.

Office of the Chief Counsel, 2019 Domestic Operations Law & Policy, 2d ed. The National Guard Bureau, 28 November 2018.

The cover letter to the policy says,

1. I am pleased to present this 2nd edition of the Domestic Operations Law and Polley Manual! Following the devastating hurricanes and fires of 2017, I

This report makes two key findings:

• There is not a systemic problem with the initial disposition authority’s decision either to prefer a penetrative sexual offense charge or to take no action against the subject for that offense. In 94.0% and 98.5% of cases

reviewed, respectively, those decisions were reasonable.

Military Court Rules of the United States: Procedure, Citation, Professional Responsibility, Civility, and Judicial Conduct: Military Court Rules of the United States presents a collection of the military justice system’s court rules, in a single volume.

https://store.lexisnexis.com/products/military-court-rules-of-the-united-states-procedure-citation-professional-responsibility-civility-and-judicial-conduct-skuusSku18865085

I do NOT receive anything from Lexis, nor do the others listed.

The Court remanded United States v. Cabrera to NMCCA for additional review based on claims that the military judge should have been recused and that trial and appellate defense counsel were IAC for not raising that at trial or before NMCCA.

 The initial NMCCA opinion. In that opinion the only issues raised were a double jeopardy claim and a failure to state an offense claim. However, the interesting issues now are:

DID LTCOL KASPYRZK’S SUBSTANTIVE PARTICIPATION INAPPELLANT’S CASE WHILE SIMULTANEOUS LY ALLEGEDLYAPPLYING FOR EMPLOYMENT TO SERVE AS THE PROSECUTION’S EXPERT ADVISOR UNDERMINE THE PUBLIC’S CONFIDENCE IN THE JUDICIAL PROCESS?

18 U.S.C. § 1385—Posse Comitatus Act.

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

10 U.S.C. § 252—(Insurrection Act) Use of militia and armed forces to enforce Federal authority.

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