Court-Martial Trial Practice

A number of opinions have come from NMCCA and AFCCA.

Here’s an NMCCA opinion of interest in United States v. Mokgoatsane.

The military judge returned from deliberations, awarding the sentence supra, followed by a “formal recommendation” on the record to the CA that an examination pursuant to R.C.M. 706 be conducted while the appellant served the adjudged confinement.  Id. at 73. Despite the military judge’s inquiry into the providence of the appellant’s pleas, this recommendation betrays that the military judge harbored real doubt as to whether the appellant “lacked mental responsibility for any offense charged or lack[ed] capacity to stand trial.” R.C.M. 706. Per the rule, it was the military judge’s responsibility, at this point in the proceedings, to address the matter, not the CA’s.

Navy Times reports: Two midshipmen were expelled from the Naval Academy on Tuesday for use or possession of synthetic marijuana, the academy confirmed Thursday. That brings the total number of mids expelled this year for spice to 15.

There is an ongoing dispute about how the Navy calculates “good time” credit.  Here’s how NMCCA disposes of the issue:

The appellant maintains that his good time credit should be calculated at a rate of 8 days per month vice 5 days per month.  This court’s statutory jurisdiction is to review the findings and sentence in certain courts-martial, but like the Court of Appeals for the Armed Forces, we do not have the authority “to oversee all matters arguably related to military justice or to act as a plenary administrator even of criminal judgments it has affirmed.” Clinton v. Goldsmith 526 U.S. 529, 536 (1999); see Art. 66, UCMJ, 10 U.S.C. § 866. Calculation of the appellant’s sentence under proper service regulations is an administrative matter that generally does not constitute punishment and enter our jurisdictional domain. See United States v. Pena, 64 M.J. 259, 268 (C.A.A.F. 2007). Accordingly, we will not further address this issue.

The Schriever (AFB) Sentinel reports:

On the heels of the Drug Enforcement Administration’s temporary nationwide ban on the drug known as Spice, another synthetic substance designed to produce a legal high has hit convenience stores, truck stops and Internet websites.  Packaged as "bath salts" or "plant food," these products contain stimulants which medical experts have compared to methamphetamine or cocaine. During the past eight months, police departments and hospital emergency rooms across the nation have reported isolated incidents of user overdoses and drug-induced suicides linked to these substances.

Yesterday, CAAF held its annual end-of-term soiree.  Chief Judge Effron and Judge Erdmann were in attendance as were many of the military appellate counsel and members of staff.

I am advised that they have about 24 more opinions to be published (Fosler and the trailer park count as one).  And as is pointed out on CAAFLog there is one more argument to go.  Here is my current, I think accurate [“my Liege” where are you], breakdown of the voting to date.

We have 15 AFCCA, 10 ACCA, 6 NMCCA, 1 CGCCA. (Sorry, neglected to consider who “won,” next iteration).

Pilotonline reports:  The court-martial of a Navy reservist accused of trying to sell classified documents is set to begin today at Norfolk Naval Station.

Stars & Stripes reports:  Navy captains and commanders have a little more time to decide whether to voluntarily retire by September 2012, or instead face an earlier exit at the discretion of a board designed to trim the ranks.

Navy Times reports:  A Navy sailor has pleaded guilty to attempted espionage for trying to sell classified documents to someone he believed was a Chinese intelligence officer.

Seizure and Search — (And I think this includes computers that are password protected.) 

Jones on Closed Containers and Apparent-Authority Consent

Brian Jones has posted Keep Closed Containers Closed: Resolving the Circuit Split in Favor of Individual Privacy (Iowa Law Review, Vol. 97, November 2011) on SSRN. Here is the abstract:  The circuits are currently split on the issue of the scope of apparent-authority consent regarding the searches of closed containers. Specifically, the circuits disagree about what measures law-enforcement officers should be required to take to determine ownership of a closed container when, while conducting a search pursuant to consent, the circumstances are ambiguous as to whether the consenter actually owns the closed container. Because the Sixth Circuit’s approach provides the most Fourth Amendment protection and is most faithful to Supreme Court precedent, the Court should resolve the current split by adopting the Sixth Circuit’s approach.

Collateral effects – immigration.

CAAF decided United States v. Savala today.

I represented him at trial.  I also represented him on appeal to the NMCCA and CAAF.  This was a case I did on appeal pro bono.

fayobserver.com reports:  A sailor who officials say was caught trying to sell government secrets while attending training on Fort Bragg is set to go on trial later this week.  Apparently he waived his 32, a PTA in the offing?

Marine Corps Times has a short piece on “sexting:”  It’s called “sexting,” the practice of exchanging sexually explicit photos with another person or sending racy text messages via cell phone. Mirroring a trend in society at large, there is evidence that lots of Marines are doing it, though the Corps does not keep data on the social phenomenon nor is it directly addressed in the UCMJ.

Reuters reports: That Holmes, one of the Stryker Brigade accused’s will get a re-opened Article 32, UCMJ, hearing.  It’s about the photo’s.

USACIL also does computer forensics.

So today I get a call on a case (not mine), a forensic examiner.  USACIL used a particular item to image the drive in a current case.  Unfortunately they can’t explain why the report shows the same numbers that obviously come from another case.  It’s called contamination.  Yes, USACIL apparently contaminates CP suspect hard drives.

Anyone who has a computer case with USACIL examiners needs to look very very closely at the evidence and the reports, and of course get your own forensic examiner.