Court-Martial Trial Practice

PV2 Brandon G. Rushing?

The military connection:  Some years ago, he plead guilty to, carnal knowledge and indecent acts with a child, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934 [hereinafter UCMJ]. The judge sentenced appellant to a bad-conduct discharge, confinement for eleven months, forfeiture of all pay and allowances, and reduction to Private E1.  United States v. Rushing, ARMY 20010582, 2003 CCA LEXIS 387 (A. Ct. Crim. App. February 12, 2003).

And now:

Navy Times reports:  Angry that he was not invited to a group dinner, the commander of a Navy flight squadron hurled insults at subordinates and slapped another sailor several times while they were all drinking at a bar in Bahrain, according to documents obtained by The Associated Press.

Stars & Stripes reports that:  The U.S. military on Friday issued a peninsula-wide curfew for all U.S. troops in South Korea, one day after South Korean authorities took custody of a U.S. soldier accused of raping an 18-year-old Korean woman.

“Given the incidents that have occurred over the last several months, I’m reinstating the curfew to assess current conditions, mission requirements, and potential force protection concerns.”

CAAF Daily Journal for 4 October has this entry in regard to the oral arguments scheduled for next week.

In view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge has called upon Senior Judge Andrew S. Effron to perform judicial duties in the above cases, and that Senior Judge Effron has consented to perform judicial duties in the cases under Article 142(e)(1) (A)(ii), Uniform Code of Military Justice, 10 U.S.C. § 942(e) (1)(A) (ii)(2006).

No, I didn’t say that, LTG Mark P. Hertling, USA, Commander U. S. Army Europe did, as reported in Army Times.  (He’s also been talking about troop strength in Europe.)

Soldier discipline has deteriorated to the point where it risks becoming “cancerous,” a senior Army general said Wednesday.

In his remarks he said:

Sun Herald reports:  A chief warrant officer who lead Coast Guard Station Gulfport until last year may be ousted from military service after being convicted on an array of charges in court martial proceedings.

Chief Warrant Officer Brandt Martin was removed from the helm at Gulfport in July 2010 while an investigation into his activities was ongoing. At court martial proceedings in New Orleans last week, a military judge convicted Martin of dereliction of duty, making a false official statement, wrongfully disposing of government property, larceny and soliciting another to commit a violation.

CDR Salamander reports on continued fall out with the Velasquez case from Yoko.

I have previously posted on the current approach of NMCCA to Fosler cases that are being heard by them for initial review.  So far there has not been an opinion in one of the trailer park remands.  Still no “Fosler” out of Army or Air Force or Coast Guard, so no “split” in the “circuits” for CAAF to decide.

United States v. Glover, No. 201100211 (N.M.Ct.Crim.App., 29 Sep 2011) (convicted according to pleas) – Affirmed. No sentence relief.

I think we have enough NMCCA cases to glean their approach, so I’ll stop counting and just note ones that are out of the ordinary.  Of the cases NMCCA has decided so far I’d expect them all to petition CAAF.  But the one of most interest will be Raucher.  Just when we thought it might get easy on the Fosler issues.  That’s because he was charged under a deficient Article 134, UCMJ, specification, but convicted of an LIO.  Had he been convicted of the 134 specification, then under the NMCCA “Fosler jurisprudence” it appears he would have had the conviction set-aside.

I found this case, pointed out by John Wesley Hall at fourthamendment.com to be of interest in light of the ongoing discussion regarding Article 120 and alcohol.  As I’ve noted before, a lot of sexual assault awareness training teaches that a person who takes one drink “can’t consent” to sex.  We all know that’s not true but the training persists.

Demonstrably intoxicated defendant (.27% & .33%) could consent to a search. The parties litigated the level of intoxication with expert witnesses. United States v. Tellefsen, 2011 U.S. Dist. LEXIS 108495 (E.D. Wis. June 2, 2011).

Note the .bac levels.  And here is a piece that Mr. Hall quotes.

Former Sergeant Major of the Army McKinney? 

wtop.com reports: 

Former Sgt. Maj. of the Army Gene McKinney will enter a plea, rather than stand trial for allegedly striking a slug passenger who demanded to be let out of McKinney’s car in Oct. 2010, WTOP has learned.

Army Times reports:  A court-martialed U.S. soldier has been found not guilty by reason of lack of mental responsibility in the killing of a civilian contractor in Iraq.

The Capital reports: A Naval Academy midshipman was found guilty of raping and sexually assaulting a classmate and lying to investigators during a court-martial at the Washington Navy Yard Wednesday.  Apparently the members deliberated for 11 hours.  In a further report the sentence is a “dismissal,” and six months confinement.

The Republic reports: A court-martial was expected to wrap up Friday for a U.S. soldier accused of killing a civilian contractor in Iraq, and a military judge will then decide whether Pfc. Carl T. Stovall was mentally competent when prosecutors say he shot the Hungarian laborer to death.  Here are some of the points from Friday’s hearings reported by the kdhnews.com.