Court-Martial Trial Practice

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

Does anyone know why the public can’t access ACCA or the TJAGSA websites?  I know when I try to access (using Chrome, Firefox, or IE) you get a site certificate error and can’t get past it.

I have clients, their families, and others asking the same question?

I understand the conclusions of the court in New v. United States, 2011 U.S. App. LEXIS 18157 (8th Cir. August 31, 2011).

Defendant in his § 2255 failed to show that defense counsel was ineffective for not arguing that he had a reasonable expectation of privacy in a hospital room. He cited no controlling case law. The law is unsettled on that at best, and no case from the Eighth Circuit is in point. Defense counsel is [essentially] not charged with being ineffective for not arguing that the law should be changed.

However, I disagree as a practice matter, or as NJAG would say, as a “best practice,” that a defense counsel should not be looking for reasonable arguments for a change in the law.  Especially when there is a “split of authority” (which could include one between the federal circuits and CAAF), or there are ongoing arguments why a particular law is wrong.  We have seen that most frequently in the Crawford-Blazier string of litigation and litigation about Article 120.

SignOnSanDiego reports an interesting civilian case, but sufficiently relevant for this weekend.  (The judge has dismissed NCIS and AFIP as defendents.)

The sample of U.S. Marine Sgt. Todd Sommer’s liver and kidney was full of arsenic, more arsenic than had ever been found in a human tissue sample before — by 1,250 percent, according to a court complaint.  It was a level . . . [that]  should have raised flags about whether the sample was contaminated.

His wife was unsuccessfully prosecuted.  And now she has a civil rights law suit against the DA for $20M.

KSALLink reports:  A Fort Riley soldier is killed during a standoff at a motel in Abilene. . . . The Army says that Evenson was reported Absent Without Leave by military authorities Tuesday when he failed to appear for the second day of his court-martial for rape of a child. He was tried in absentia and on Wednesday he was convicted and sentenced to life without the possibility of parole.

Salina Journal is reporting a “seven hour” standoff.

The charges will get set-aside because he has died during the course of his trial and appeal.  The effect of that will be the family will get death benefits, etc.  “An appellant is entitled to an appeal of right and his death prior to completion of that appeal generally entitles him to abatement of the proceedings ab initio.” United States v. Rorie, 58 M.J. 399, 400 (C.A.A.F. 2003).

Slightly off topic.  The Richmond Times Despatch reports on the pending appellate action of the “Norfolk Four.”  Seems to me this might be a coram nobis case had it been a court-martial.

From FOB Tacoma, The News Tribune reports:  The Army is moving forward with most of the charges it pressed against a Joint Base Lewis-McChord sergeant linked to its Stryker “kill team” investigation despite a July report that expressed skepticism about the soldier’s guilt.

 Stars & Stripes reports:  The Air Force is holding an investigative hearing this week at Kadena Air Base to determine whether a staff sergeant will stand trial for the January death of a fellow airman, according to the 18th Wing public affairs office.