Court-Martial Trial Practice

NMCCA has had a “disparity” week.

United States v. Ochoa, is a case addressing a not infrequent issue, sentence/disposition “disparity” between co-accuseds. 

[A]ppellant’s claim does raise the issue of differences in initial disposition of co-accused, an issue that
can be viewed by this court in determining sentence appropriateness under Article 66(c), Uniform Code of Military Justice.  Noble, 50 M.J. at 295.  We find the nonjudicial disposition of LCpl Lopez’s and LCpl Ortega’s charges to be closely related to the appellant’s case.  Both of these Marines were directly involved in some of the frauds for which the appellant was sentenced.  When cases are closely related, yet result in widely disparate dispositions, we must decide whether the disparity results from good and cogent reasons.  United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R. 1994).

They slipped one through.  Last Thursday CAAF granted a petition for a non Fosler case.

No. 12-0053/AR. U.S. v. Richard L. EASTON. CCA 20080640. Review granted on the following issue:

WHETHER THE ARMY COURT ERRED IN HOLDING THE APPELLANT’S TRIAL DID NOT VIOLATE HIS CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY BECAUSE JEOPARDY DID NOT ATTACH AND EVEN IF IT DID, MANIFEST NECESSITY JUSTIFIED THE CONVENING AUTHORITY’S DECISION TO WITHDRAW CHARGES.

SCOTUSBlog has put up the courts argument schedule for February and March 2012.  There are a couple of cases that may have military practice interest.

Wed., Feb. 22:

11-210 — U.S. v. Alvarez – constitutionality of Stolen Valor Act’s criminalization of false claims of receiving a military medal or decoration

ACC:  Sir, I was at the gym, so I wasn’t where this happened.

TC:  Objection your honor, we’ve received no notice under Mil. R. Evid. 701.

MJ:  Sustained.

computer to blog, or for other purposes?

There is an interesting case going on in the Ninth, United States v. Nosal.  The case was recently reconsidered en banc.

Howard Bashman at How Appealing quotes an article:

The ever excellent Federal Evidence Review has this nice summary and analysis of White v. Illinois.

While here they report:

Vacating cocaine distribution conviction and remanding because defendant’s trial included expert testimony by a witness about the contents of the drug identification analysis reported by a non-testifying expert, violating the Confrontation Clause; as the expert’s trial testimony "simply parroted the conclusion" of the non-testifying expert, the testifying expert’s "testimony amounted to no more than the prohibited transmission of testimonial hearsay," in United States v. Ramos-Gonzlez, __ F.3d __ (1st Cir. Dec. 9, 2011) (No. 10–1318).

Here is a link to Executive Order 13593, in the Federal Register, dated 13 December 2011, which amends the MCM.

The Army Court of Criminal Appeals issued a Memorandum Opinion on 9 December 2011, in the case of United States v. Perterson.  The opinion is worth reading for its discussion of prosecution over-reaching in aggravation witnesses, cross-examination of defense witnesses, and argument.  The defense did not object to the prosecution argument, but as the opinion notes, dealt with the argument in their own argument.  The court finds error with the trial counsel’s argument and the military judge’s response.  Here is the AOE (which was evaluated using a plain error analysis):

WHETHER IT WAS PLAIN ERROR WHEN TRIAL COUNSEL INFLAMED THE PASSIONS OF THE PANEL BY IMPLYING THAT CHILDREN ON ARMY INSTALLATIONS EVERYWHERE ARE IN DANGER OF BEING SEXUALLY ABUSED BY APPELLANT AND ARGUING THAT APPELLANT SHOULD BE PUNISHED FOR ACTUALLY HARMING CHILDREN.

In discussing the prosecutors role the court begins:

Navy Times has a tally of CO and senior enlisted firings for 2010 -  2011 to date.  #2 on the list is CO, RLSO, Japan.

Military.com has more on the firing and NJP of:  A Navy skipper who lost his command this summer was fired in part for making his Sailors work on a Sunday to help him host a family reunion at which he allowed his relatives to drive military vehicles and go for rides on a landing craft, according to a Navy investigation report.

Army Times reports:  The first female commandant of the Army’s school for drill sergeants at Fort Jackson, S.C., has been suspended from her position, according to an Army official.