Court-Martial Trial Practice

Well, is the 9th Circuit due for another pounding for their allegedly errant ways?  Courtesy of SCOTUSBlog here are two opportunities.

Title: Cavazos v. Smith
Docket: 10-1115
Issue(s): Did the Ninth Circuit exceed its authority under 28 U.S.C. § 2254(d) by granting relief for insufficient evidence based on its acceptance of the cause-of-death testimony of defense experts over the contrary opinion testimony of prosecution experts?

Certiorari stage documents:

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

The published opinion leads off with note that this is the second time they’d heard the case, the first before the Supremes remanded.  This is a shaken baby prosecution, and so should be of interest to military practitioners. 

Every now and again I post a post-service case relating to a court-martial.  Here is Pacheco v. Commandant USDB.  Note this case is in the ‘notorious,’ to military prisoners, 10th Circuit.  There are no military appellate decisions to link to:  ACCA gave its standard merits denial and CAAF denied.

This matter comes before the court on a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241. Petitioner, a prisoner at the United States Disciplinary Barracks, Fort Leavenworth, Kansas, seeks habeas corpus relief on the ground that he received ineffective assistance of counsel during court-martial proceedings.

From time to time a military appellant will raise an issue at CAAF that the CCA did not properly consider their claims of error, as evidenced by the summary merits affirmance.  CAAF has not granted on such a claim.  Here is the Fed. Dist. Ct. for Kansas on the one line denials.

Army Times reports that:  Pvt. 1st Class Andrew Holmes, of Boise, Idaho, changed his plea to guilty in a deal with Army prosecutors [er, with the CA]. Holmes confessed in court that he fired a heavy machine gun at an unarmed Afghani man from 15 feet away.  He was sentenced to 15 years confinement, but  has a seven year confinement cap.

Rather than navigate to the list, here are the vacate and remands referenced by Dwight “My Liege” Sullivan on CAAFLog the other day.

No. 10-0265/AF. U.S. v. Douglas E. LONG. CCA 37044.

No. 11-0227/NA. U.S. v. Ros L. DAVIS. CCA 201000302.

CAAF announces its “Passing the Gavel” ceremony to be held 1300, 27 September 2011, at EStreet.

Chief Judge Efron will pass the gavel to Chief Judge Baker.

I have posted already about NMCCA’s apparent handling of Fosler cases that are currently before them for decision – here, here, here, and here.

It appears that CAAF is now starting to deal with the trailers they have on their docket, by sending some of them back.  Dwight “My Liege” Sullivan notes on CAAFLog, the initial event.  What isn’t clear from the remands is whether or not the cases are NG pleas w/, NG pleas w/o, or GP please w/ or w/o.  The CAAF website doesn’t have the 21/9 daily journal updated yet on the Fosler cases, although as DMLS points out, they appear to be working on the Blazier trailers and have sent back a number of urinalysis cases for HBRD analysis in light of Blazier and Sweeney.

I’m surprised that NMCCA has set aside several GP cases, and on reflection I’m surprised they set aside in Walton, a fully contested NG case.  Initially it seems fair to say that the strongest argument for affirming in all GP cases is that the client didn’t make a motion and successfully got through providency on all the elements.  So it seems odd that NMCCA would start to make a distinction based on what appears to be the offense itself.  It would seem an all or nothing approach to GP cases is the best answer in light of Fosler and the Supreme Court jurisprudence on post-trial motions to dismiss for failure to state an offense.  While it is true that a motion to dismiss for failure to state an offense is non-waivable, why should an implied waiver theory (as NMCCA is doing) not be the answer in all GP cases.  If there was confusion on the part of the accused in the providency inquiry, then it would be reversed on an inadequate providency grounds should it not?

On 21 September 2011, a new Army Directive went into distribution on a Self Reporting requirement.

The Army Directive – Self-Reporting by Officers and Senior Enlisted Members of Criminal Convictions is effective immediately.

Coverage appears to be limited to convictions after 1 March 2008.  For those convicted after 1 March 2008 and before the date of the memorandum, the person has 15 days from 21 September 2011 to report their conviction, after that it is 15 days after date of conviction.  They include a nolo plea, as well as, “all actions tantamount to a finding of guilty.”  They intend to capture PBJ type situations, anything along the lines of deferred judgment.  In Maryland you can get probation before judgment.  Do you probation and the conviction goes away.

United States v. Scaringello, passes Fosler muster (ahem) on a GP to breaking restriction.  Familiar rationale which basically says that no military member can fail to understand that a breaking restriction allegation relates to GoD.

I mentioned a report the other delay that United States v. Bailey has been delayed to a time uncertain.  Here the blog truthdigit as a interesting story about the case from the perspective of the victims family.

Relatives say that trying to answer the question of what, exactly, happened to McBeth has become a guessing game that gnaws at them day and night because military investigators from the Army’s Criminal Investigative Command, known as the CID, which investigates all noncombat deaths, have offered so little information. And in the course of revealing those few facts, the investigators have managed to increasingly confuse and anger the family.

Sound familiar?