Court-Martial Trial Practice

Stars & Stripes reports:  The number of reports of family violence within the military, which had been in decline over several years, has been rising over the last two years, and reports of abused children and spouses increased significantly last year, a report by the Defense Department’s Family Advocacy Program shows.  But what it means — more people reporting who had kept silent in the past, better record-keeping or more people in the military abusing their spouses and children — is unknown.

Stars & Stripes reports:  If you want more explanation about the military’s troubles in treating troops with traumatic brain injuries and post-traumatic stress, read no further than two recent but largely unnoticed reports from the Government Accountability Office.  This is of interest because many of our clients have or purport to have these issues as an element of the disciplinary status.  It turns out the Pentagon’s solution to the problems is an organization plagued by weak leadership, uncertain priorities and a money trail so tangled that even the GAO’s investigators couldn’t sort it out.

Outside the Wire has a note about Army tattoo policies.

Here, courtesy of the great Professor Berman, is a case from Ohio, ruling that a state sex-offender registration law intended to comply with SORNA is unconstitutional under the state constitution.

In a ruling with potential national implications even though based only on state law, the Ohio Supreme Court this morning in a 5-2 opinion decided that the state’s new sex offender registration requirements were punitive and thus could not, as a matter of Ohio state constitutional law, be applied to offenders who committed offenses before this new registration law was put into effect. The majority ruling in Ohio v. Williams, No. 2011-OHIO-3374 (Ohio July 13, 2011) (available here)[.]

It’s an ex-post facto case, which generally has not resulted in reversal in federal courts under the federal constitution.

The Confrontation Clause states that

In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him…

But does the Confrontation Clause cover only analytical and conclusory statements, or does it also cover "routine and descriptive and objectively ascertained and reliable facts?" According to a Maryland trial court, it only covers the former. According to the Court of Special Appeals of Maryland in its recent opinion in Green v. State, 2011 WL 2578562 (Md.App. 2011), it also covers the latter.

In a self-defense case it is proper, if available to introduce evidence that the alleged victim was the aggressor, etc.  There are two general ways to do that.  One of the most common issues to come up is specific instances of the alleged victim’s prior assaultive behavior.  federalevidence blog has a nice reminder about this in connection with when/how the evidence would be admissible under (Mil.) R. Evid. 404 and 405.

Keep in mind that when you are dealing with specific instances, a threshold requirement is that the accused knew about the instances before the alleged assault.  Otherwise the instances can’t have contributed to the accused’s state of mind at the time of the offense.

The circuit explained that admissibility of the evidence as specific incidents to prove the defendant’s state of mind was admitted under restricted circumstances under FRE 404(b), as "Drapeau would have been required to present evidence that he had pre-incident knowledge of the evidence." Drapeau, __ F.3d at __ (citing United States v. Gregg, 451 F.3d 930, 935 (8th Cir. 2006) (defendant’s state of mind ans well as the reasonableness of the defendant’s use of force was admissible under FRE 404(b)); United States v. Bordeaux, 570 F.3d 1041, 1049 (8th Cir. 2009) (“[E]vidence of prior bad acts of the victim are admissible under Rule 404(b) to establish the defendant’s state of mind and the reasonableness of the defendant’s use of force.”); United States v. Scout, 112 F.3d 955, 962 n.7 (8th Cir. 1997) ( “[The defendant] testified that he did not know the identity of the police officers pursuing him. Because [the officer’s] alleged reputation for violence could therefore not have affected [the defendant’s] state of mind when assaulting [the officer], [the officer’s] reputation—and how it was derived—was irrelevant.”))

No, normally the best course of action is to persist with either the objection or what you are doing.  In that situation it is hard or harder for an appellate court to later apply waiver.

We make objections during a trial.  Or an objection is made to something we are doing or asking.

If you are making a valid objection, it doesn’t seem to be a good idea to withdraw the objection most of the time.  Certainly there are times when on reflection you realize the objection was wrong, or perhaps not stated well, and so it is fine to withdraw the objection or state it better.

Temple Daily Telegraph reports:  The attorney for accused Fort Hood shooter Maj. Nidal Hasan has requested that Hasan face military court martial in March 2012. Hasan’s attorney John Galligan has also asked that Hasan be arraigned on Fort Hood on July 20.

Here is Professor Friedman The Great with initial thoughts.

Here is an advert for “Officer’s Oath” to be published by LTC Lakin in concert with Jack Cashill.  I found this to be a curious assertion.

[T]he handful of Terry’s detractors have been dwarfed by the mountain of supporters. Not all agree with his methods, but none have faulted his commitment to the Constitution, the Truth, and his oath as an officer in the US Army.

Army Times reports:  Sgt. Mitchell Streeter was overwhelmed. Twice deployed, he was suffering from post-traumatic stress disorder, unable to sleep, stressed out by his job as a recruiter, and now he was being forced out of the Army after a drunken-driving arrest.  The story is much larger than that unfortunately.

Air Force Times reports:

A wing commander who used a fighter jet for personal trips and pocketed nearly $96,000 in extra pay for unauthorized compensatory time has left his job with the Alabama Air National Guard’s 187th Fighter Wing.   LtCol Smiley’s photo, courtesy of AFT, is probably a pre-decisional one.

WDRB.com reports:  The U.S. Army charged Sgt. Brent Burke at around 3 p.m. July 8 for violating Article 118 of the Uniform Code of Military Justice.  Burke has formally been charged with two specifications of premeditated murder and it has been alleged "in that Sergeant (E-5) Brent A. Burke, U.S. Army, did at or near Rineyville, Ky. on or about Sept. 11, 2007, with premeditation, murder Tracy Burke by means of shooting her with a firearm and that he did, at or near Rineyville, Ky., on or about Sept. 11, 2007, with premeditation, murder Karen Comer by means of shooting her with a firearm.