Court-Martial Trial Practice

Stars & Stripes reports on some “new” developments at the [in]famous USACIL.

The military’s premier crime lab should be a place of sober scientific research, but lately it seems more like the set of a soap opera consumed with scandal and intrigue.

In less than four years, at least six internal investigations have been launched and six complaints filed against managers. The accusations and counter-accusations include racism, sexual harassment, assault and fraud.

Several items crossed my .net over the last few days.  The topic is not new and will remain with us for some time.

Army Times reports:

Officials at Joint Base Lewis-McChord believe they’re making progress against the stigma that keeps some soldiers from getting help for mental health issues.

Daily Journal blog is reporting that Bozicevich goes back to court on Monday for his sentencing hearing.

Many years ago I spent a lot of time prosecuting and defending “pack rats.”  There was a slew of “national security cases” in the late 1980’s, post-Walker.  It appears there is a new name for personnel who took classified material home either by accident (in the briefcase or notebook), or because they wanted to have them as examples for future work.  That was in the days before just about everything was available in digits and electronically.  Dwight “My Liege” Sullivan will remember, but won’t tell, such a case – McGuinness., 35 M.J. 149 (N.M.C.M.R. 1992); actually this would be when DMLS and I first “met.”

Now it is called “electronic spillage.”  Interesting, just keeping up with the times.

Navy Times reports:

Army Times reports:  A Joint Base Lewis-McChord soldier convicted in the deaths of three Afghan civilians last year is backing away from an earlier statement that one of his superiors explicitly approved the first killing.

WAVY.com reports:  Crew members of the Coast Guard Cutter Venturous engaged in clandestine hazing in the berthing areas of the ship between summer 2007 and winter 2009, according to a two-year investigation by the Coast Guard.

North County Times reports:  A Camp Pendleton Marine convicted of leading the kidnapping and slaying of an Iraqi man in 2006 has been recommended for parole by officials at Miramar[.]   [B]rig officials at Miramar voted unanimously in favor of granting parole to Sgt. Larry Hutchins III, who has been behind bars for much of the last five years.  Hutchins’ case now goes to the Naval Clemency and Parole Board in Washington, which is scheduled to consider his case on July 13.

The US Supreme Court has decided Bullcoming.  Surrogate testimony is no good.

The question presented is whether the Confrontation Clause permits the prosecution  to introduce a forensic laboratory report containing  a testimonial certification—made for the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.  We hold that surrogate testimony of that order does not meet the constitutional requirement.  The accused’s right is to be confronted with  the  analyst who made the certification, unless that analyst is unavailable at trial, and the accused had  an  opportunity, pretrial, to cross-examine that particular scientist.

The US Supreme Court acknowledges what others refuse to acknowledge.  There is the potential for human error, even when using GS/MS equipment.  Slip op. at 4 (with footnotes [n.1] to support what we all know, or should know).

Army Times reports:  The director of the Army Substance Abuse Program at Carlisle Barracks is on leave pending further action after his arrest on cocaine distribution charges.

In Mil. R. Evid. 1102, any amendment to the Federal Rules of Evidence come into effect in courts-martial 18 months after their effective date, absent action to the contrary.  I have not seen anything on Fed. R. Evid. 502(d), within the Joint Service Committee or other DoD organ.  The federal rule becomes effective 1 December 2011.

A piece in the New York Law Journal has this comment:

Enacted in 2008, Federal Rule of Evidence 502(d) permits a federal court to order that a "privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other Federal or State proceeding.

In United States v. Olguin ___ F.3d ___ (5th Cir. 2011), the court determined that certified business records were properly admitted where the documents had been provided the defense about six months before trial and the prosecution gave written notice five days before trial of the intent to offer under Fed. R. Evid. 902(11).

Thanx, federalevidencereview blog.

Many Navy bulkheads have that stuck up somewhere in jest.

But, as Professor Berman reports, Salon has a piece about a new book authored by Peter Moskos, “In Defense of Flogging.”