With several military personnel on death row and in the federal appeals/habeas process, and several death referred cases pending, here is an interesting article on some federal judges pushing back on limits on appeals.
Limits On Death Penalty Review Sparking Judges’ Dissents
Posted Aug 14 2009 –
By Seth Robson, Stars and Stripes
Mideast edition, Saturday, August 15, 2009
GRAFENWÖHR, Germany — The life sentence of a U.S. soldier convicted for the execution-style killings of four bound and blindfolded Iraqi detainees has been reduced to 40 years, military officials announced Friday.
. . .
The ACCA has overturned the conviction of Private Simmons because the judge erroneously failed to dismiss the charges for an Article 10, UCMJ, violation. Here is the link to the unpublished opinion, Judge Ham writing for the court.
United States v. Simmons, ARMY 20070486 (A. Ct. Crim. App. 12 August 2009).
A military judge sitting as a general court-martial convicted appellant, in accordance with his pleas, of absence without leave, failure to go to his appointed place of duty, failure to obey a lawful order, and disorderly conduct, in violation of Articles 86, 92, and 134, Uniform Code of Military Justice, 10 U.S.C. § 886, 892, and 934 [hereinafter UCMJ].[1]
How many times do we hear it from clients, especially appellate clients — “I got my discharge, it’s an honorable, what do I do?”
ACCA has decided that issue for Estrada, in United States v. Estrada.
Appellant argues her receipt of an administratively-issued honorable discharge prior to the convening authority’s approval of her adjudged bad-conduct discharge remits the punitive discharge and renders it a nullity. After considering the assignment of error and the applicable service regulations, we specified the following related assignment of error:
Associated Press
FORT HOOD, Texas — A Soldier who refused to deploy to Afghanistan over his beliefs that the war violates international law was sentenced here Wednesday to a month in jail.
Spc. Victor Agosto, 24, of Miami, pleaded guilty to disobeying a lawful order to report to a site that performs medical, legal and other services for troops before they deploy. The judge also reduced his rank to the Army’s lowest level, a private, which also was part of the maximum penalty he faced in his plea agreement with the military.
Here is an interesting post by Prof. Colin Miller on his EvidenceProfBlog about search incident to seizure.
Valerie Blum, Alexandra Rudolph, From the Conference Room to the Courtroom: How a Change in Setting Affects Witness Preparation, 21 The Jury Expert, July 2009.
A court martial is set for [this past] Monday at Camp Pendleton for a 21-year-old Marine from Orange County accused of desertion, possession of child pornography and fraudulent enlistment.
The case will likely end up in a plea bargain with the Marine admitting guilt to one or more charges in exchange for being released from the brig and discharged from the Marine Corps under something less than honorable conditions.
Like civilian justice, the court martial system encourages plea bargains to avoid trials, particularly in cases where the accused has already spent significant time in custody. Pvt. Joshua Fry has been in the brig since being arrested a year ago attempting to desert.
Death and Pvt Loving, 20 Jul7 2009.
Dwight Sullivan at CAAFLog has posted this:
On 1 and 2 October, the Judge Advocate General of the Air Force will present a CLE conference at the George Mason School of Law in Arlington, Virginia. The program is open to active duty, reserve, and retired personnel, as well as to civilian attorneys. The program’s cost is $35, payable by 15 September. Requests for CLE credit should be submitted by 10 August.
Contact me for CLE credit information.
Court-Martial Trial Practice Blog