Articles Posted in New Cases

All were submitted on their merits.  All except one was a straight legal affirmance.

In United States v. Carney, the court themselves found two errors that needed to be corrected.  The convening authority failed to suspend the bad conduct discharge as agreed in a pretrial agreement, and a multiplicity issue was reviewed for plain error and granted.  The sentence as adjudged was affirmed.

Jansen.  A sentence comparison case among co-accused’s.  The case is of note to trial practitioners and SJA’s for it’s “discussion” of what is or isn’t a “closely related” case, and whether sentence disparity should be addressed with the CA post-trial.

Principi.  A CP case where the prosecution charged for contingencies of proof, the contingency wasn’t resolved at trial, but the sentence was a decent one so no real prejudice.

Redeaux.  I think this case should be looked at as a pleadings specificity and notice case, and IAC of TC/SJA/Art. 32 IO.  Poor pleading practice lead to the accused getting a benefit, that he probably wasn’t entitled to.  The MJ raised issues with the pleadings.  The TC folded and apparently didn’t make an argument that the pleadings, while inartful, were sufficient.  Because the TC folded the accused got the benefit of renegotiating his PTA for a lower sentence cap.

Here is the footnote that should be of concern to all defense counsel, from United States v. Regaladozambrano, just decided.

While the Court has declined to brand Capt [O’s] post-trial legal representation of the appellant as deficient, that restraint is exercised only due to the lack of any evidence of prejudice in the record before us.

What’s the court’s concern?

CAAF has released an opinion in United States v. Bush, __ M.J. ___ (C.A.A.F. 2009).  That means, according to CAAFLog, two more to go before of all of the current pending decisions have been released.  Judge Erdmann writes the opinion; Judge Ryan writes a “concur in the judgment” opinion which Judge Stuckey is in agreement with.

This is a post-trial speedy review case.  The NMCCA decision was affirmed which denied relief.  Appellant had submitted a general claim of prejudice without any supporting documents.  The court also decided that the NMCCA erred in placing the burden on appellant to produce evidence of prejudice, but the error of burden shifting was harmless beyond reasonable doubt.  The court specifically avoided creating a presumption of prejudice for future cases.

In her concurring opinion Judge Ryan said she wants to revisit the post-trial delay jurisprudence, and reject any decision-making based on a public perception of injustice theory.  She is open to the possibility of relief where there is actual prejudice.

Monday, August 10, 2009:  Fourth Circuit affirms CIA contractor detainee abuse conviction, Andrew Morgan

[JURIST] The US Court of Appeals for the Fourth Circuit [official website] on Monday affirmed [opinion, PDF] the conviction of a Central Intelligence Agency (CIA) [official website] contractor on assault charges related to the abuse of an Afghan detainee [JURIST report]. The court found that the district court had properly exercised maritime and territorial jurisdiction [18 USC § 7 text] over the actions of David Passaro [JURIST news archive] while he was employed by the CIA at Asadabad Firebase [GlobalSecurity backgrounder] in Afghanistan. Although the court rejected the construction of "military … mission" used by the US District Court for the Eastern District of North Carolina [official website] as too narrow, the duration and nature of the site’s use, and improvements made to the fortification lead the Fourth Circuit "to conclude that it possesses all the qualities of a permanent U.S. military base abroad, albeit on a smaller scale …."

h/tip JURIST

United States v. Wiechmann, __ M.J. ___, No. 09-0082/MC (C.A.A.F. July 6, 2009) has been decided.  There was error, but found to be constitutionally harmless.

After a captain with very little defense experience was detailed to represent a retirement-eligible lieutenant colonel, the Chief Defense Counsel of the Marine Corps detailed a highly respected Marine Reservist LtCol as a defense counsel in the case.  From this point on the convening authority and the first military judge on the case refused to recognize or deal with LtCol Shelburne as a detailed counsel.  A second judge did accept the detailing.  The issue was money, who pays for the LtCol.

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