Court-Martial Trial Practice Blog

Up periscope!

September 21, 2011 | The Law Office of Philip D. Cave

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?

NMCCA continues its Fosler tornado

September 21, 2011 | The Law Office of Philip D. Cave

NMCCA has decided United States v. Walton. In that case they dismissed an adultery and indecent language conviction based on Fosler, without discussion of the issue. I sort of assume they feel comfortable that Lansford, Gibson (which I posted here) and Leubecker (which I posted here) sufficiently explain NMCCA’s thinking on how to deal with Fosler.

However, I would note that Walton was a fully contested rape case which resulted in a NG on the rape. I was the defense counsel (and no I didn’t file a motion). We were too busy with the false rape allegation. (The “rape victim” called her friend after the sex, appeared to say she liked it, “and would do it again.” When she and accused were investigated for alcohol and fraternization the “victim” admitted consensual sex, or words to that effect. After she was advised of a potential summary court-martial and shortly after the erroneous (IMHO) sexual assault training, the “victim” claimed rape.)

Anyway, the point about NMCCA’s decision is that it was a contested case, not a guilty plea case like Lansford, Gibson,and Leubecker, and the issue wasn’t raised at trial. It appears that NMCCA will rely on the same rationale as they have expounded for guilty plea cases? Keep in mind that this was a clear fraternization case, albeit beginning as a false rape allegation.

Up periscope!

September 20, 2011 | The Law Office of Philip D. Cave

KVIA.com reports: A U.S. Army sergeant accused of the mercy killing of an Iraqi teenager faces court martial at Fort Bliss. Sims is accused of giving a fatal dose of a lethal drug to an Iraqi teenager with third-degree burns to 70 percent of his body at the 10th Combat Support Hospital in 2006 in Iraq.

One witness, Sgt Candi Piper, a fellow nurse and Sims’ former roommate, said she feared for her life because of, “All the euthanasia being performed in Iraq.”

KIVITV reports that: United States v. Holmes begins this week. PFC Holmes’ Court Martial begins this week at Joint Base Lewis-McChord outside Seattle. The 21year-old Boise soldier stares at life in prison. Through the ordeal, Dana Holmes has always maintainced her son’s innocence. Several months ago, photos published in a German magazine showed Holmes and his fellow soldiers posing with the bodies of Afghan civilians. “People don’t know because the Army doesn’t want them to know that Andy was ordered by his superior officer to be in that picture,” Dana Holmes said.

Non-capital referral recommended in Russell

September 19, 2011 | The Law Office of Philip D. Cave

The Atlanta Journal-Constitution reports: Judge (COL) Pohl has recommended a non-capital referral in United States v. Russell.

An Army sergeant accused of killing four fellow soldiers and a Navy officer at a mental health clinic on a military base in Iraq two years ago should be tried for murder but should not face the possibility of execution because he suffers from serious mental illness, a military judge recommended.

Sgt. John Russell, who opened fire at the combat stress center at Camp Liberty near Baghdad in May 2009, should be held accountable for his actions and face a court martial on the five counts of premeditated murder he faces, Col. James Pohl wrote in his recommendations issued Friday.

NMCCA again on a Fosler issue

September 19, 2011 | The Law Office of Philip D. Cave

I posted a couple of weeks ago almost, that NMCCA’s cases in which the Fosler issue was addressed. We have another case which appears consistent with NMCCA’s approach in those prior cases.

In United States v. Leubecker, the court took up a Fosler issue again. The two challenged specifications related to breaking restriction and communicating a threat. NMCCA ruled against appellant.

1. It was a guilty plea, with a PTA.

NMCCA action–misbehavior of a sentinel

September 19, 2011 | The Law Office of Philip D. Cave

NMCCA has set aside a guilty plea and conviction of misbehavior by a sentinel in United States v. Apodaca.

DID THE MILITARY JUDGE ERR BY ACCEPTING THE APPELLANT’S PLEA OF GUILTY TO MISBEHAVIOR BY A SENTINEL, WHERE THE APPELLANT WAS IMPAIRED BY A SUBSTANCE OTHER THAN ALCOHOL AT THE TIME OF THE OFFENSE? COMPARE MANUAL FOR COURTS-MARTIAL, UNITED STATES (1969 ED.), PART IV, PARA. 35c(3) AND 38c(5), WITH MANUAL FOR COURTSMARTIAL, UNITED STATES (2008 ED.), PARA. 35c(6) AND 38c(5).

It appears the accused was under the influence of hashish, not alcohol, and he was not sleeping. NMCCA notes that in the current Manual the President unaccountably narrowed the definition of drunk under Article 113, UCMJ.

Up periscope!

September 19, 2011 | The Law Office of Philip D. Cave

Stars & Stripes is reporting the results of the Wickware court-martial.

Airman 1st Class Horace Wickware, convicted Monday of the abuse and murder of his 8-month old son, was found guilty Monday and sentenced to 22 years in prison.

I see that the Stars & Stripes have picked up on the former SecNav piece in the Naval Institute Proceedings., which I posted the other day in regard to the number of Navy CO’s being relieved for cause.

Worth the Read

September 19, 2011 | The Law Office of Philip D. Cave

James Gow, War and War Crimes: Military, Legitimacy and Success in Armed Conflict, Coumbia Univ. Press, Dec. 2011.

Necessity and proportionality inform the laws of war, but how do these principles work in modern warfare? What new pressures do the practitioners of war face, especially in light of rapid changes in strategy and policy and an increasing emphasis on ethics and legality?
Wars waged in fluctuating environments make the legitimacy of armed force hard to justify, especially among diverse international and transnational publics. More than ever, strategy has come to embrace justice and law as crucial components of military success, but legitimacy is fragile and easily contested, and today’s militaries struggle to respond positively, consistently , and legally to an ever-shifting dynamic. Drawing on empirical research and interviews with seasoned military professionals, this volume describes how militaries can work successfully within the politics-law-strategy nexus to foster and maintain a sense of legitimacy in war. James Gow clearly defines the mutual relationship between wars and their outcomes, pinpointing the moment when a war act becomes a war crime, especially within multidimensional combat. Taking an initial, bold step in reconciling a troubling and taboo issue, Gow provides strategists, policymakers, and others with a framework for mitigating negative outcomes.

In the Supremes

September 19, 2011 | The Law Office of Philip D. Cave

Professor Friedman has posted various amicus pleadings on his blog here. He lists one not currently on the SCOTUSBlog for the case. A little more here with Supreme Court cases with potential impact on military justice. Professor Friedman does note as to his own filing:

There are a couple of passages that I would amend if I could, in which I refer to the "primary purpose" test and appear to assume that it governs a case like this. I believe a "reasonable anticipation" test is far preferable, and I am hoping that the "primary purpose" test will eventually recede, perhaps first by being confined to interrogations. The recent decision of the Michigan Supreme Court in People v. Fackelman,, which I expect to discuss in a post in the very near future, raises my hopes that this may turn out to be true.

Up periscope!

September 15, 2011 | The Law Office of Philip D. Cave

Now we know – who the nominee is to be the next judge of the Court of Appeals for the Armed Forces — Kevin A. Ohlson. Here is a short fact sheet from DOJ.

Here’s a piece from whorunsGOV at the Washington Post.

Career History: Chief of Staff to Attorney General Eric Holder (January 2009-January 2011); Director of theExecutive Office of Immigration Review(September 2007-January 2009); Deputy Director of the EOIR (September 2003 to September 2007); Board Member on the Board of Immigration Appeals at the EOIR (March 2001 to September 2003); Chief of Staff to Deputy Attorney General Eric Holder (1997 to 2001); Assistant U.S. Attorney of District of Columbia (1991 to 1997).