Court-Martial Trial Practice

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).

The Recordnet.com reports on the non-capital referral decision in United States v. Platero.

The commanding general of Fort Stewart, Ga., did not talk directly with the families of two soldiers killed in Iraq a year ago – including the Carrillo family of Stockton – before making the decision to pull the death penalty off the table in court-martial proceedings against another soldier under his command.

You will recollect the still ongoing issues with the Navy VWAP at Yokosuka, Japan.

Stars & Stripes reports on the continuing trial of United States v. Wickware.

The wife of a Spangdahlem Air Base airman charged with murder in the abuse death of his infant son testified at his court-martial Monday.

Note the comment of an experienced military judge about how difficult these cases can be for the fact-finder (and one who obviously sought to apply the standard of proof).

Giannelli on Junk Science and the Willingham Execution

Paul C. Giannelli (Case Western Reserve University – School of Law) has posted The Execution of Cameron Todd Willingham: Junk Science, an Innocent Man, and the Politics of Death on SSRN. Here is the abstract:

Cameron Todd Willingham was tried and executed for the arson deaths of his three little girls. The expert testimony offered against him to establish arson was junk science. The case has since become infamous, the subject of an award-winning New Yorker article, numerous newspaper accounts, and several television shows. It also became enmeshed in the death penalty debate and the reelection of Texas Governor Rick Perry, who refused to grant a stay of execution after a noted arson expert submitted a report debunking the “science” offered at Willingham’s trial. The governor has since attempted to derail an investigation by the Texas Forensic Science Commission into the arson evidence presented at Willingham’s trial.

There is some reason to believe that the result in United States v. Fosler may only benefit him.

Fosler objected at trial.  It is believed that all of the Fosler trailers are either guilty plea cases or not guilty plea cases where the accused did not object at trial.  There’s a good argument – stated in Fosler — that those who plead guilty will not benefit from Fosler.  But what of those who plead not guilty and didn’t raise the issue at trial?  There is a hint in Fosler.  We know the objection can be raised at any time including on appeal – but what will CAAF decide?

In the meantime, we know what NMCCA will do in a case where it’s a contested trial at which there is apparently [n.1] no motion to dismiss, and the charge is adultery?  See United States v. Lonsford.  NMCCA set aside two adultery specifications based on Fosler.  The clock is running on whether NTJAG will certify the issue in light of the Fosler trailer park still located on E Street.[n.2].  Ah, but is Lonsford the way NMCCA will handle all such cases?

El Paso Times has a short piece on one of their native sons.

When El Paso’s Lance Cpl. Miguel Terrazas was killed during an ambush in Haditha, Iraq, in 2005, a search for the perpetrators left 24 Iraqis dead. Investigators are still trying to find out the truth of what happened that day in the "fog of war." . . .

What most certainly was lost in the fog that December day was a 2003 Mountain View High School graduate who had earned the respect of his fellow Marines.  On a previous Iraq deployment, Terrazas received a commendation for bravery.

The Press Enterprise reports:  A military hearing over whether three Hawaii-based Marines should go to trial for alleged hazing of a squad member who later killed himself in Afghanistan concluded Friday and a commander will now make a final determination.  Looks like some interesting litigation.

Naval Criminal Investigative Service agents didn’t read the Marines their rights when they took statements from the men about Lew’s death. The attorneys told Gardner they would object to the use of the statements in a court martial as a result.  NCIS agents told the hearing they didn’t read the Marines their rights because at the time the men were witnesses and not suspects.

Reports also in Mercury News and Sacramento Bee.  All are based on an AP report.

The Augusta Chronicle has a piece on a whatever happened to – – – Willie Joe King.

Thcourt-martial of Willie Joe King for the murder of fellow Army Pvt. Joseph Poye often brought more questions than answers.. . .

[i]n March 1964, King was taken back to Fort Gordon for his trial on charges of premeditated murder, two cases of grand larceny and 27 cases of forgery.

Prof. Colin Miller takes up the current status of Crawford with this intriguing title:  Post-Bryant Case Law Confirms Scalia’s Fears.  His premise quite simply is that we are back to Ohio v. Roberts and measuring “reliability” using different phraseology.

In my view, a test that hinges upon the hidden and empirically unknowable “primary” purposes of hypothetical similarly-situated declarants and interrogators, and one which takes all relevant factors into account in making that determination, is no better than one that requires a judge to determine a statement’s “reliability.” While I am not sure of the most appropriate solution at this time, the natural thought would be to replace Bryant’s multi-factor test with a simpler test, one that would not require courts to examine the potentially mixed motives of declarant and interrogator.  I have written an article proposing a bright-line rule to replace Bryant’s factors test.  You can download the full article here:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1921606