Uncategorized Category Archives — Page 82 of 113 — Court-Martial Trial Practice Blog Published by International Military Lawyer

NMCCA sets aside BCD for Article 13 credit

December 24, 2009 | The Law Office of Philip D. Cave

Article 13, UCMJ, prohibits pretrial punishment.

In United States v. Turner, NMCCA 200401570 (N-M.C. Ct. Crim. App. 22 December 2009), the court found pretrial punishment and set-aside the BCD. This may be somewhat pyrrhic because the sentence was adjudged in 2001. That means the appellant has been on unpaid appellate leave since 2001. In his claim for post-trial delay he does not assert that being on appellate leave without a DD214 was prejudicial.

When the ship returned from its brief underway period, the appellant was brought from the
pretrial confinement facility to appear before the Captain and crew at a public mast (“mast” is frequently understood to mean nonjudicial punishment proceedings, but it also includes award ceremonies and individual meetings held at a service member’s request). After the Captain informed the appellant and the crew that the charges were being referred for trial, the appellant returned to pretrial confinement.

Still open case

December 24, 2009 | The Law Office of Philip D. Cave

Nearly two years after prosecutors in Jacksonville decided not to charge anyone in the gunfight that killed a club owner outside his bar north of Springfield, the Navy has acquitted a sailor of murder in the case.

NewsJacksonville.com reports —

Navy prosecutors would only say they had believed the case should be pursued.

Major Hasan gossip

December 24, 2009 | The Law Office of Philip D. Cave

An Army psychiatrist accused of fatally shooting 13 at the Fort Hood, Texas, military base had asked for a Muslim cleric’s advice about killing U.S. troops, according to a new interview.

CNN.com reports.

Retired Army Col. John Galligan, Hasan’s civilian attorney, has said his client is considering pleading not guilty by reason of insanity [at his court-martial].

CGCCA case to watch

December 23, 2009 | The Law Office of Philip D. Cave

The CGCCA has issued a 2-1 opinion in United States v. Lucas, and it is likely a case to watch with CAAF.

The CGCCA has been the most vigilant of the services in protecting an accused’s post-trial rights, so the decision in this case seems odd. There is no evidence that any of the proper procedures were followed in this case except for allowing the defense counsel to review the ROT.

Also, there is no clemency materials submitted by either the defense counsel or accused. Did the defense counsel contact the appellant? Did the appellant have anything to submit?

Another Stolen Valor case

December 22, 2009 | The Law Office of Philip D. Cave

A man accused of posing as a highly decorated war veteran faces federal charges of falsely wearing heroic medals of honor. Angel Manuel Ocasio-Reyes, 48, was charged under the Stolen Valor Act.

This is the fourth time in 12 months someone has been prosecuted under the Stolen Valor Act, according to Amy Filjones, a spokeswoman with the U.S. Attorney’s Office.

Tampabay.com reports.

Third SEAL pleads NG

December 22, 2009 | The Law Office of Philip D. Cave

The third SEAL accused in the assault of an alleged al-Qaida terrorist pleaded not guilty Tuesday to charges of dereliction of duty and making a false official statement in a military court on Norfolk Naval Base.

Trial by court-martial is set for 6 April 2010, Navy Times reports. The other two SEAL’s alleged to be involved with violating the UCMJ have each plead not guilty and have trial dates set.

More pregnancy issues.

December 22, 2009 | The Law Office of Philip D. Cave

Here is the Order in question regarding getting pregnant while deployed to the AOR. So far as reported earlier there have not been any court-martials.

Bob McCarty has blogged the issue from what appears to be a non-lawyer perspective.

Major Hasan pretrial punishment?

December 21, 2009 | The Law Office of Philip D. Cave

The lead defense lawyer for accused Fort Hood shooter Maj. Nidal Malik Hasan said Monday that he believes the Army is violating Hasan’s religious rights because it prohibited him from praying from the Koran in Arabic with a relative.

Attorney John P. Galligan said he learned that police guarding Hasan at Brooke Army Medical Center in San Antonio cut short a phone conversation Hasan was having with one of his brothers on Friday because Hasan was not speaking in English.

San Antonio Press News reports.

Litigation by Media and Congress

December 21, 2009 | The Law Office of Philip D. Cave

For some years now, primarily relating to Iraq/Afghanistan cases there has been lots of litigation by media and congress. The current move to save the SEALs by congress is just the most recent example of seeking to influence a court-martial case. The “litigation” has been both for and against the military member. We all remember the issue of Congressman Murtha calling for prosecution of a Marine for alleged misconduct. Whether such litigation is good for the system and the UCMJ is a different question. In this day and age of millisecond journalism and sound-bites here are a couple of thoughts and a caution. LawProf blog has posted:

Laurie L. Levenson (Loyola Law School Los Angeles) has posted Prosecutorial Soundbites: When Do They Cross the Line? (Georgia Law Review, Forthcoming) on SSRN. Here is the abstract:

Even good prosecutors can cross the line with media soundbites. Especially in high-profile cases, prosecutors must assess if their pretrial remarks about a case meet their ethical obligations. In Gentile v. Nevada State Bar, 501 U.S. 1030 (1991), the United States Supreme Court held that while lawyers have the First Amendment right to make comments to the press, they do not have the right to make comments that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Although ethical codes have adopted this broad standard, many have failed to identify more specifically when a prosecutor’s remarks pose a substantial likelihood of having such a prejudicial effect. Using 28 C.F.R. § 50.2 as a guide, this article seeks to identify those “hot-button” areas.

Another stolen valor

December 21, 2009 | The Law Office of Philip D. Cave

A separated Marine who says he lied about earning a Purple Heart while serving in Afghanistan faces charges of misrepresentation of decorations in Obion County.

Reports Marine Corps Times.