Here’s an interesting grant and remand from CAAF.
No. 10-0265/AF. U.S. v. Douglas E. LONG. CCA 37044 (2009 CCA LEXIS 477).
WHETHER APPELLANT WAS DENIED DUE PROCESS BECAUSE ASSURANCES OF AIR FORCE OFFICIALS PROVIDED HIM WITH DE FACTO IMMUNITY FROM PROSECUTION.
CAAFLog advises that Pendergrass v. Indiana, No. 09-866, is scheduled for the 10 June case conference at the Supremes. Here courtesy of Prof. Freidman counsel for Pendergrass and also of Melendez-Diaz and Briscoe “fame,” is the Pendergrass cert petition. Here also is the state of Indiana’s brief in opposition to certiorari at this link.
The issue will potentially impact United States v. Blazier , 68 M.J. 544 (A. F. Ct. Crim. App. 2008) (yes, that’s the correct volume according to LEXIS), concerning whether surrogate expert testimony complies with Melendez-Diaz. C.A.A.F. partially decided some issues, but:
[W]e order briefing from the parties, and invite briefing from the government and defense
appellate divisions from the other services, on the following:
Marine Corps Times reports:
A man who pleaded guilty last year to altering an identification card after he was spotted in the uniform of a three-star Marine general has been charged again with posing as a highly decorated Marine officer.
Sixty-seven-year-old Michael Hamilton of Richlands was charged last week with wearing a Marine colonel’s uniform and three counts of wearing medals, including two Navy Crosses, the second highest award for valor.
The LA Times has interesting piece which essentially posits that both the defense and Congress are being stonewalled in production of relevant information. Usually it’s only the defense.
But even before the gavel comes down, two legal battles are underway to try to force the Army and the Department of Justice to turn over documents dealing with Hasan’s past, particularly his personnel files, his mental health records and other documents that might suggest the government should have known he was a dangerously troubled soldier.
The Senate Homeland Security and Governmental Affairs Committee has taken the unusual step of issuing subpoenas demanding the records as part of its investigation into the shooting spree. What they want to know, said committee Chairman Joe Lieberman (I-Conn.), is "why was he not stopped before he took 13 American lives, and how can we prevent such a tragedy from happening again?"
In United States v. Eslinger, __ M.J. ___ (A. Ct. Crim. App. 14 May 2010), the court has set out a useful reminder in two areas: a military judge’s duty to instruct on all issues and the potential problem of defense waiver of instructions, and how to handle testimony that an accused does or doesn’t have rehabilitative potential.
1. Instructions.
A military judge has a sua sponte duty to give certain instructions when reasonably raised by the evidence, even in the absence of a request by the parties. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (citing R.C.M. 920(e)). Mistake of fact is a special defense that a military judge must instruct court members on sua sponte if reasonably raised by evidence. R.C.M. 916(j); R.C.M. 920(e)(3). Waiver does not apply based on the mere failure to request the affirmative defense instruction or to object to its omission. United States v. Taylor, 26 M.J. 127, 128-29 (C.M.A. 1988). However, the defense can make a knowing waiver of a reasonably raised affirmative defense. United States v. Guitterez, 64 M.J. 374, 376 (C.A.A.F. 2007) (citing United States v. Barnes, 39 M.J. 230, 233 (C.M.A. 1994)). For a waiver to be effective, it must be clearly established that appellant intentionally relinquished a known right. See United States v. Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008) (citations and quotations omitted).
NMCCA denied Quintanilla’s petition
in which he sought to have the court overturn the ruling of the military judge at his sentencing rehearing to the effect that Life Without Parole (LWOP) is not an authorized
sentence in his case. Alternatively, the petitioner requested that this court direct the military judge to grant the petitioner’s motion allowing him to waive his right to clemency and parole following sentence, so that he can more easily reach a pretrial agreement with the convening authority.
The King James (UK) version of Proverbs 18-17 says: He that is first in his own cause seemeth just; but his neighbour cometh and searcheth him.
The King James (Am.) version says: He that is first in his own cause seems just; but his neighbor comes and searches him.
The New Living Testament (2007) says: The first to speak in court sounds right–until the cross-examination begins.
There’s been lots of litigation about SORNA. But now, courtesy of Sentencing Law & Policy we learn that DOJ has some recommendations for amending SORNA.
You will be interested to know that this morning the U.S. Department of Justice issued proposed supplemental guidelines modifying several requirements for compliance with SORNA. Many address concerns raised by the states and other stakeholders. They do the following:
- Gives jurisdictions discretion to exempt juvenile offenders from public website posting
- Provides information concerning the review process for determining that jurisdictions have substantially implemented
- Gives jurisdictions discretion to modify the retroactive registration requirement to apply to new felony convictions only
- Provides mechanisms for newly recognized tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA
- Expands required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations
- Requires jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public website posting
- Requires jurisdictions to have sex offenders report international travel 21 days in advance
- Clarifies mechanism for interjurisdictional information sharing and tracking.
(update) Here is a link to the 14 May 2010 entry in the Federal Register.
safeguardourconstitution reports that: “Obama Administration unleashes Army lawyers instead of releasing birth certificate.” This is shameful hyperbole and utterly incorrect.
LTC Lakin is alleged to have committed offenses in violation of the UCMJ. The conduct alleged cuts to the very heart of military requirements of obedience to orders, fidelity to the oath of office, and the need for seniors to set the example. I’m reliably informed that in addition to formal counselings every effort was made pre-preferral to convince LTC Lakin to obey his orders. In the face of such contumacious behavior the Army had no choice but to prefer charges. Enlisted personnel are regularly disciplined, court-martialed, and jailed for the same or similar conduct and who have better reasons for their AWOL. Such a stunning lack of officership cannot pass unnoticed or undisciplined. Neither President Obama nor his administration has any role in this case at all. Should the administration try to get involved they should be told – politely – to butt out.
Safeguardourconstitution reports that the Article 32, UCMJ, hearing is scheduled for 11 June 2010.
The report links to a letter to MAJ Kemkes (a great TDS lawyer from Fort Myer) granting a delay of the hearing from 6 May to 11 June.
LTC Driscoll, a lawyer, is the IO. The use of non-lawyers as IO is pretty standard within the Army. Thanx CAAFLog for the update.
Court-Martial Trial Practice Blog