Uncategorized Category Archives — Page 82 of 114 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Blackwater down – update

December 31, 2009 | The Law Office of Philip D. Cave

U.S. District Judge Ricardo Urbina said Justice Department prosecutors improperly built their case on sworn statements that had been given under a promise of immunity. Urbina said the government’s explanations were “contradictory, unbelievable and lacking in credibility.”

And all charges have been dismissed, reports Air Force Times.

In ruling one month before the defendants were to face trial in Washington, Judge Urbina dismissed the case not for its merits, but for the way the government had handled the prosecution, calling the government’s explanations for the improper use of statements “contradictory, unbelievable and lacking in credibility.”

Major Hasan and his restriction

December 31, 2009 | The Law Office of Philip D. Cave

Attorney John Galligan says Maj. Nidal Hasan has excessive restrictions — including a rule barring any visitors when his attorneys are in his hospital room.

Air Force Times reports.

This same rule operates at the pretrial confinement facility. The Brigs are pretty good about letting counsel in to visit for “legal visits.” But there are restrictions on mingling of family visits and “professional” visits.

Stolen valor report

December 31, 2009 | The Law Office of Philip D. Cave

David Vincent Weber arrived last month at a Ramona Veterans of Foreign Wars event in style: two stars on his shoulder and two Purple Heart medals pinned on the front of a Marine Corps uniform.

Weber, 69, appeared in a federal courtroom in downtown San Diego yesterday with considerably less pomp. He faces a charge under the 2005 Stolen Valor Act of wearing military medals he didn’t earn while passing himself off as a Marine major general at VFW Post 3783’s birthday celebration for the Corps.

SignOn San Diego reports.

A case of stolen valor

December 30, 2009 | The Law Office of Philip D. Cave

A man accused of posing as a Marine major general at a Veterans of Foreign Wars party in Ramona to celebrate the birthday of the Marine Corps was arraigned Wednesday on a federal misdemeanor charge of making false claims about military decorations or medals.

San Diego News Network reports.

On base search, evidence in state prosecution

December 29, 2009 | The Law Office of Philip D. Cave

Federal law should govern a federal NCIS search on a military base for evidence of a murder of a civilian employee on the base that ends up prosecuted in state court. The court finds that this is a narrow issue in this case. The security search of defendant’s car on the military base was also valid. State v. Torres, 2009 Haw. App. LEXIS 781 (December 15, 2009).

Fourthamendment.com.

No search of cellphone without warrant?

December 26, 2009 | The Law Office of Philip D. Cave

Thanks to howappealing.law.com, here is a Ohio State Supreme Court opinion in State v. Smith. The issue is warrantless searches of cell-phones. While this issue may have been raised in a court-martial, I don’t see a relevant military appellate decision. So the issue is apparently an open one for court-martial cases.

Here is a link to a New York Times editorial on the Ohio case.

The Ohio Supreme Court has struck an important blow for privacy rights, ruling that the police need a warrant to search a cellphone. The court rightly recognized that cellphones today are a lot more than just telephones, that they hold a wealth of personal information and that the privacy interest in them is considerable. This was the first such ruling from a state supreme court. It is a model for other courts to follow.

Sham or shame

December 26, 2009 | The Law Office of Philip D. Cave

The Army’s attempt to stem a rising tide of suicides made it impossible for a Fort Bliss soldier convicted of cruelty toward subordinates to get a fair trial, the soldier’s parents say.

"I still maintain that this was a miscarriage of justice," said John Taylor, father of Pvt. Jarrett Taylor. "They needed a conviction and they got it. É This is a sham."

Taylor said his son, a sergeant at the time, was trying to help soldiers on their first deployment in Iraq survive in a combat zone.

Impact of pregnancy on readiness?

December 25, 2009 | The Law Office of Philip D. Cave

FrumForum interviewed retired Major Merideth A. Bucher, author of the much cited paper, The Impact of Pregnancy on U.S. Army Readiness.

Bucher explains that a woman who becomes pregnant ceases to be available for combat service. She will be returned home; her unit is left missing a body, a soldier.

She passionately told of her own experience: Two days before Desert Storm was to begin the female intelligence officer in the Major’s battalion became aware she was pregnant. Because she could not deploy and was sent home the battalion was left vulnerable by having to fight without an intelligence officer present. By losing one person everyone else has to work that much harder to get the mission accomplished. And when a woman soldier in particular gets pregnant, Bucher argues, “it weakens every female soldier standing as a member of that unit. If one woman does that it taints the water for everybody.”

Major Hasan news bite

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

A counterterror airstrike in Yemen that may have targeted Anwar al-Awlaki, the extremist cleric linked to Fort Hood shooter Maj. Nidal Malik Hasan, could raise new questions about whether Hasan’s rampage in Killeen, Texas, on Nov. 5 was the act of a lone wolf or part of a conspiracy.

Reports the Christian Science Monitor.

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.