Uncategorized Category Archives — Page 64 of 112 — Court-Martial Trial Practice Blog Published by International Military Lawyer

CGCCA affirms judge on an Article 62 appeal

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

United States v. Daly.

Initially the accused was charged with violating a CG Personnel Manual regulation (about personal relationships) under Article 134, UCMJ. After some discussion of preemption issues (Dwight-san?), the charge was amended to remove the violation of a lawful order language. Then the defense challenged the charge on the basis of failure to state an offense and notice. After litigating the issue the military judge dismissed the charges, and the government appealed.

There is an interesting discussion of the CG Personnel Manual’s categorization of personal relationships into acceptable, unacceptable, and prohibited. Apparently the evidence put the accused’s conduct into the unacceptable. Unacceptable conduct is to be dealt with administratively only.

Blazier – er, I mean Pendergrass update

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

CAAFLog has posted a link to the denial of certiorari in Pendergrass v. Indiana. When the Supremes, or any appellate court, denies a petition this is what I usually think of. Probably need to update my trial notebook because there must be a more recent “quote?” Stern & Gressman must be past a 7th edition?

[D]enial of a petition for writ of certiorari . . . simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter "of sound judicial discretion." A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result.. . . Inasmuch, therefore, all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated. United States v. Carver, 260 U.S. 482 (1923). See also, Evans and Jordan v. Stephens, et. al., 544 U.S. 942, n.1 (2005)("Nothing is more basic to the functioning of this Court than an understanding that denial of certiorari is occasioned by a variety of reasons which precludes the implication that were the case here the merits would go against the petitioner"); and see, Stern & Gressman, Supreme Court Practice, 7th ed., para. 5.7.

So, what will CAAF do about Blazier?

LTC Lakin – survey of some interesting diatribes

June 13, 2010 | The Law Office of Philip D. Cave

Here are several interesting “comments” on LTC Lakin’s case.

Mr. Harrington [infra] references and links to Cody Robert Judy;

candidate for U.S. Senate from Utah and former presidential candidate, [who] has filed an Amicus Curiae brief with the U.S. Army on behalf of Lt. Col. Lakin.

Yammine – and computer file names

June 12, 2010 | The Law Office of Philip D. Cave

United States v. Yammine.

Here is the granted issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED EVIDENCE OF FILE NAMES FOUND ON APPELLANT’S COMPUTER THAT WERE SUGGESTIVE OF HAVING CONTAINED CHILD PORNOGRAPHY BUT WHOSE ACTUAL CONTENT WAS UNKNOWN, ALLOWING THE GOVERNMENT TO ARGUE APPELLANT’S PROPENSITY OR MOTIVE TO COMMIT SODOMY OR INDECENT ACTS WITH A MINOR.

The Ramrod five

June 12, 2010 | The Law Office of Philip D. Cave

AP reports that:

Five soldiers from the same Washington state-based unit have now been implicated in the killing of three Afghan civilians, an Army spokeswoman said Monday.

The Army said Friday that Spc. Jeremy Morlock had been charged with three counts of premeditated murder and one count of assault.

LTC Lakin today

June 12, 2010 | The Law Office of Philip D. Cave

Officer to Army: See you in court, is the title of a posting to World Net Daily. The piece also links to the new video release. I did not see a new confession, merely a continuance of his supposed reasons for his contumacy.

He cited a long list of "reasonable arguments" raising questions about whether Obama was born on American soil.

Assuming arguendo that there are reasonable questions about President Obama’s citizenship, the questions remain irrelevant to LTC Lakin’s court-martial.

Blazier update

June 11, 2010 | The Law Office of Philip D. Cave

CAAF’s daily journal for 10 June 2010 indicates that CAAF has allowed NIMJ to file a brief on behalf of appellant (I abstained from participation in producing said brief), and allowed NACDL to file an amicus pleading but denied NACDL leave to file an “oversized brief.”

And more on the LTC Lakin 32 waiver

June 9, 2010 | The Law Office of Philip D. Cave

Here is a link to the press release.

The YouTube video isn’t operational yet.

Courtesy of TPMMuckraker here is the WRAMC statement:

Hutchins certification

June 9, 2010 | The Law Office of Philip D. Cave

Here is the daily journal entry for Navy TJAG certification of United States v. Hutchins.

No. 10-5003/MC. U.S., Appellant v. Lawrence G. HUTCHINS, Appellee. CCA 200800393. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING, INTER ALIA, THAT THE MILITARY JUDGE SEVERED THE ATTORNEY-CLIENT RELATIONSHIP WITH CAPTAIN BASS?

Post-trial delay

June 9, 2010 | The Law Office of Philip D. Cave

The CGCCA has issued a per curiam opinion in United States v. Sapp., a SPCM tried at U.S.C.G. Training Center Yorktown.

Before this court, Appellant has assigned two errors: (1) This court should consider the unreasonable and unexplained post-trial delay in determining the sentence that should be approved under Article 66(c); and (2) the promulgating order contains three errors. We grant sentence relief for post-trial delay and otherwise affirm. . . .

Notable delays in post-trial processing are found in the fifty-nine days apparently taken by the military judge to authenticate the record, the seventy-seven days taken after receipt of the authenticated record to produce the SJAR and send it to defense counsel, and the twenty-eight days between Convening Authority action and sending the record to Headquarters. The Memorandum forwarding the record gives no meaningful explanation for these delays, attributing them only to “administrative processing.”