Court-Martial Trial Practice

Up until, today I think, I would visit NMCCA’s website looking for new “opinions,” and then read each of them looking for interesting issues and points, etc.

That was frustrating.   As DMLHS posted the other day, the court hasn’t issued a published opinion for some time, and the number of unpublished opinions was small compared all of the decisions.  So, I and others spent some wasted time reading a lot of one liners.

Today that changed!

The post title is plagarized, um, no its not, I’ve given attribution, from the VA Bar CLE weekly update.

Formerly under Virginia law, cases in which a party had failed to present an argument in the trial court were not eligible for the appellate courts to apply the "right result for the wrong reason" doctrine. This was so because the trial court had not had an opportunity to rule on the argument that was being raised for the first time on appeal. In Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431, 436 (2010), the Virginia Supreme Court reversed this interpretation of the doctrine and held that a party’s failure to present an argument in the trial court does not preclude affirmance under the "right result for the wrong reason" doctrine as long as all of the necessary evidence to support the argument was presented at trial.
The Court stated that consideration of the facts in the record and whether additional factual evidence would be necessary to support the newly advanced reason is the proper focus of the application of the doctrine. The Court further agreed with the U.S. Supreme Court that an appellee may also "urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it." (quoting United States v. Am. Ry. Express Co, 265 U.S. 425, 435 (1924)). The application of the doctrine was also addressed in a civil case decided the same day, but the Court reached the opposite result where the facts of the case developed at trial that should have supported the newly stated ground were in conflict. Banks v. Commonwealth, 280 Va. 612, 618, 701 S.E.2d 437, 440-41 (2010).

It’s about evidence and technology.  Do enough computer crimes in the military and you’ll see why this article about the Casey Anthony trial has some peripheral interest.

New York Times reports:  Assertions by the prosecution that Casey Anthonyconducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.

He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said.

Stars & Stripes has this interesting piece about how it (apparently) may have been engaged, without its knowledge or consent, in hosting CP.

I’m getting ready to retry Savala.  So I’m actually more than curious than usual about cases that have been retried, remanded, or . . .

In the process I remembered United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004).  Actually, I remembered the quirky issue, it was DMLHS who reminded me the exact case . 

CAAF remanded after deciding this issue:

The CGCCA has issued an opinion in United States v. Thompson.

The case is a reminder that what you do or don’t do at trial has consequences on appeal.  OK, that’s a rather obvious meaningless statement – fine.  But I’m thinking of a number of areas (as highlighted in Thompson) where we make a motion, the judge offers or “fashions” relief, and then the judge says to the defense, “is that good enough, etc?”

If you say, “Yes judge, your remedy is fine,” it becomes rather hard to then complain on appeal, as did Thompson.  Thompson’s issue related to UCI.

Navy Times reports:  The military’s “don’t ask, don’t tell” policy is back in place for the time being, with one major caveat: the government is not allowed to investigate, penalize or discharge anyone who is openly gay. A San Francisco federal appeals court ordered the military to temporarily continue the controversial policy in an order late Friday, the court’s response to a request from the Obama administration.

Navy Times reports:   Should a service member convicted and sentenced in civilian court be tried on the same charges at court-martial?  In a couple of weeks, Rodney Williams will find out.  It’s not double jeopardy; at court-martial, Chief Information Systems Technician (SW) Rodney Williams would face federal rather than state charges. But the Navy, dissatisfied that a Virginia court found the chief petty officer guilty of voluntary manslaughter in the off-base fatal shooting of a former sailor for which he was charged with first-degree murder,

Digital Journal reports:  ‘The Court Martial (sic) Of Lieutenant Colonel (Retired) Richard Schaller’.”  Xlibris, the print-on-demand self-publishing services provider, announced today the release of The Court Martial Of Lieutenant Colonel (Retired) Richard Schaller. Authored by Richard Schaller, this book is a comprehensive detailing of the occurrences during the federal trial of the longest white-collar criminal investigation in US Air Force history and its devastating impact on the war on terror.

Navy Times reports that:  The commanding officer of a submarine tender based in Diego Garcia was fired Friday after his ship struck a channel buoy in June, the Navy said Friday. He is the 13th CO fired this year.

Politico reports:  The commander of the Marine base where Wikileaks suspect Pvt. Bradley Manning was jailed for nearly 10 months ordered an inquiry into his treatment and then overruled one of the investigator’s findings, Marine Corps documents obtained by POLITICO show.

There’s an interesting piece on Salon about how the Manning “story” got uncovered and . . .   The piece is actually about the ethics of some of the reporting about the case, in particular by Wired, and some effort to deconstruct the case against Manning.

Here is an interesting tidbit that apparently has not been publically released until now.

Just consider some of what Wired concealed.  First we have this, from very early on in the first Manning-Lamo conversation (emphasis added):