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ACCA and military judge partiality

August 7, 2010 | The Law Office of Philip D. Cave

On 28 July 2010, ACCA issued a memorandum opinion and decision for the government appeal in United States v. Kirk, ARMY MISC 20100443 (A. Ct. Crim. App. 28 July 2010).

At trial the accused blew providency on an AWOL plea. The prosecution decided they wanted to go forward on the desertion. As part of the case the prosecution wanted to use unwarned statements made to the First Sergeant. The military judge said the statements were coerced, etc., and excluded them. The prosecution appealed. Of course the ACCA ruled in favor of the government that being dragged to the First Sergeant’s office, locked up, and asked a bunch of questions, was not an interrogation and any statements were voluntary. Cases cited are United States v. Duga, 10 M.J. 206 (C.M.A. 1981); United States v. Loukas, 29 M.J. 385 (C.M.A. 1990). Basically it is in the mind of the questioner, not the person being questioned.

Here is the noteworthy piece.

LTC Lakin 3

August 6, 2010 | The Law Office of Philip D. Cave

World News Daily has this report:

At the conclusion of the arraignment, Lakin was ordered not to speak with the press and was taken back to Reed under military escort, surprising and disturbing a civilian lawyer who has been working on his case.

“This was completely inappropriate. Col Lakin was brought here and taken away from here as if he was a common criminal. He was prohibited from talking to the press for two minutes; he was prohibited from talking to anybody, even me,” Paul Rolf Jenson said.

LTC Lakin 2

August 6, 2010 | The Law Office of Philip D. Cave

I had to go to the bank, pet store, and commissary today so I stopped off to watch the arraignment.

There was a standard R.C.M. 802 conference.

The Army script was followed.

A new MEJA prosecution

July 28, 2010 | The Law Office of Philip D. Cave

Military.com reports that:

A former U.S. Army contractor was arrested today in Newport News, Va., for allegedly killing one sailor and seriously injuring another in a vehicular collision in Kuwait[.]

Hanks is charged under the Military Extraterritorial Jurisdiction Act (MEJA), a statute that gives U.S. courts jurisdiction to prosecute crimes committed outside the United States by, among others, contractors or subcontractors of the Department of Defense. If convicted, Hanks faces up to 10 years in prison.
The case was investigated by the U.S. Army’s Criminal Investigative Division and is being prosecuted by Senior Trial Attorneys Micah D. Pharris and Steven C. Parker of the Criminal Division’s Human Rights and Special Prosecutions Section (HRSP) and Assistant U.S. Attorney Eric Hurt for the Eastern District of Virginia.

Newby decided at CGCCA

July 27, 2010 | The Law Office of Philip D. Cave

United States v. Newby has been decided and has a reminder for trial defense counsel.

The military judge made a clemency recommendation.

The SJAR failed to note the clemency recommendation.

Orly Taitz-world

July 17, 2010 | The Law Office of Philip D. Cave

On 16 July 2010, Orly Taitz posted the following item on her website.

NO ANSWER FROM JUSTICE THOMAS YET. PEOPLE CAN FILE AMICUS CURIAE BRIEFS- FRIEND OF THE COURT, IN SUPPORT OF THE APPLICATION

Pity, because there is a 15 July 2010 entry on the Supreme Court journal regarding Taitz v. Thomas D. MacDonald, Colonel Garrison Commander, Fort Benning, et al:

Oooops, trial counsel, defense counsel do you agree

July 15, 2010 | The Law Office of Philip D. Cave

Here is an new grant from CAAF.

No. 10-0494/AF. U.S. v. Caleb B. BEATY. CCA 37478. Review granted on the following issue:

WHETHER THE SENTENCE MUST BE SET ASIDE BECAUSE THE MILITARY JUDGE DETERMINED THE SENTENCE BASED ON THE INCORRECT MAXIMUM PUNISHMENT.

Miranda, where is she

July 15, 2010 | The Law Office of Philip D. Cave

Carmen Miranda was a celebrated and successful actress from the 1940’s. She died 5 August 1955. And no she wasn’t auditioning to be co-counsel for LTC Lakin.

Ernesto Arturo Miranda died on 31 January 1976, in prison. Although his notable case resulted in a new trial he was reconvicted. He died in a knife fight.

The case of Miranda v. Arizona has not died yet, or has it, or will it soon. The American Constitution Society has a piece, Examining Miranda’s Future.

LTC Lakin update

July 14, 2010 | The Law Office of Philip D. Cave

Oh, For Goodness Sake blog is reporting that Orly Taitz is now assisting in LTC Lakin’s defense?

A posting at A Natural Born Citizen . . . Orly? appears to indicate that one of Orly Taitz’s blogs has been taken over – I think by aliens. Oh man what a pun. She does have some blather, but apparently repetitious of some of the events in the Lakin case.

Another LIO case

July 6, 2010 | The Law Office of Philip D. Cave

Here is an interesting Order in United States v. Aguilar where the court has specified an issue.

Whether assault consummated by a battery in violation of Article 128, UCMJ, 10 U.S.C. § 928, of which the appellant was convicted, is a lesser included offense of the charged Rape by Use of Physical Violence in violation of Article 120, UCMJ, 10 U.S.C. § 920, if the proof does not show the assault is the alleged act of physical violence that compelled sexual intercourse.1

The footnote is: