Court-Martial Trial Practice

The Voice of America reports:  A military court in the western U.S. state of Washington is set to try Calvin Gibbs, an American soldier accused of masterminding the brutal killings of Afghan civilians last year. Gibbs’ court martial is set to get under way on Friday.

What I find interesting from a radio program intended to extol American justice as part of its mission is:

In the months leading up to his court martial, U.S. Army Staff Sergeant Calvin Gibbs has refused to cooperate with military investigators. 

WAVY.com reports:  A NAVSEA commanding officer was relieved of his duties permanently Oct. 25 for violating Article 133 of Uniform Code of Military Justice, “displaying conduct that is unbecoming of an officer and a gentlemen,” according to a press release.

While Navy Times reports:  The former commanding officer of the destroyer Momsen has been charged with rape, sodomy and maltreatment and will be court-martialed on Friday, a Navy spokesman confirmed.

DailyAmerican has a piece about Wuterich.  The writer mistakenly believes the SecDef has referred the charges, and mistakenly believes the president and secretary of defense can order the convening authority to drop the charges.

Professor Friedman has posted several amicus filings for Williams v. Illinois.

You can read the brief of the United States by clicking here.  You can read the brief of 42 states, the District of Columbia, and Guam, all under the leadership of Ohio, by clicking here.  The National District Attorneys Association has also filed a brief, and I expect there will be at least one more; I will send links for these when I have them.

Find more about this case on SCOTUSBlog, including some amicus for the petitioner.

Stars & Stripes reports:  The Navy has thrown another skipper overboard.  Cmdr. Joseph A. Nosse is the second commanding officer fired within a week — and the 20th this year.

Army Times reports:  The Army has trimmed 2 1/2 years off the 12 1/2-year prison sentence of a soldier with mental health problems who pleaded guilty to killing a captured Taliban suspect in Afghanistan.

Army Times reports:  The former Army surgeon convicted of killing his pregnant wife and young daughters at Fort Bragg more than 40 years ago is being held in Wilmington awaiting a hearing.  Officials confirmed Friday that 68-year-old Jeffrey MacDonald is being held in the New Hanover County jail.

Marine Corps Times reports:  Col. Jeffrey R. Woods was removed from his job Wednesday due a lack of confidence, according to a Marine Corps news release. The move was made by Maj. Gen. Peter Talleri, head of Marine Corps Installations Pacific.

KCAW reports:  The U.S. Coast Guard has brought criminal charges against the sole survivor of a 2010 helicopter crash in which three people from Air Station Sitka died. Lieutenant Lance Leone is facing possible court martial for negligence and the death of two of his crewmates — all violations of the Uniform Code of Military Justice, and all charges he intends to fight.

Navy Times reports:  A wide-ranging Navy investigation into synthetic marijuana use has snagged 64 sailors from three San Diego-area commands, leading to several separations and other punishments.

Here is a link to Vol. 76 Fed. Register 65062, of 19 October 2011.

Comments on the proposed changes must be received no later than 

December 9, 2011, to be assured consideration by the JSC. A public 

Chism v. Washington.  Here are a couple of clips.  This was a case of a false search affidavit based on affirmative misrepresentations and material omissions.

Our conclusion also finds support in the WSP’s training materials, which explain:

Much, if not all, of the cyber-evidence (the E-mail addresses and IP addresses used) will lead you to an innocent person. That’s why simply identifying which account was used to commit a crime does not provide you with probable cause to get a search or arrest warrant for the name and address on that
account. You’ll need to do more investigating to determine if there is a link between the account
holder (or other members of the household) with the criminal activity that was committed with that
account.

In  United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001), the CAAF has held that the Sixth Amendment confrontation right does not apply at sentencing, but that the Fifth Amendment does.

Here is an interesting case from the Supreme Court of Arkansas, Vankirk v. State, which applies the confrontation right to a jury (members) case.  Here are Prof. Friedman’s thoughts:

I think this case is a good illustration of the issue of confrontation rights in sentencing. Suppose the girl had testified live at the sentencing proceeding, but at the conclusion of direct, as defense counsel was rising to cross-examine, the judge said, "You are excused. We have no need for cross-examination, so I will not allow it." I think that would plainly be unconstitutional – if not under the Confrontation Clause, because the Clause is construed not to apply to this type of proceeding, then under the Due Process Clause. So should the result be any different when the witness testifies just outside the courtroom on videotape and the tape is played at the proceeding? When I refer to the speaker as a witness and say that she is testifying, I am drawing on one of the essential points of Crawford: Simply because a person (such as Sylvia Crawford) speaks out of court does not mean that she is not testifying, and indeed the central focus of the Confrontation Clause is to require that testimony be given in court, under prescribed procedures[.]