Court-Martial Trial Practice

Professor Friedman has a quick note on a petition filed at the Supremes in Racz v. California.

The petition ably shows that there is a sharp conflict of authority on the question of whether a statement can be deemed testimonial even though it was not made to governmental authorities. Regular readers of this blog will know that I believe the answer to that question should be affirmative. This is an important issue that the Supreme Court should resolve soon; whether this case is a good vehicle for that purpose, I do not know.  (Emphasis added.)

People v. Racz, No. BA320288, August 30, 2010 (Ca.. App. 2010)(unpub.).  It appears a petition for review at the California Supreme Court was denied on 15 December 2010.

The fayobserver.com reports:  The top enlisted Special Forces soldier has been removed from his position while commanders investigate allegations that he had an extramarital relationship.  In addition to the adultery, the military investigation:

The military investigation, Pruitt asserts in the court documents, is focused on determining whether Vigil broke a military law that prohibits unbecoming conduct and whether he shared classified information with her.

In doing some browsing I came across a copy of the Article 32, UCMJ, IO report in United States v. Wuterich at this link.  There’s also a link to various reports on the Haditha “cases.”

You are aware of Fasler and the numerous trailer cases.  Here is a grant from today’s CAAF orders:

No. 11-0374/AR.  U.S. v. Lelan M. SHANKLES.  CCA 20100307.  Review granted on the following specified issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER AND JONES.

Professor Colin Miller has a very interesting post regarding a new article by Cynthia Jones, A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J. Crim. L. & Criminology 415 (2010).

Most importantly are two potential recommendations for dealing with the issue at trial.  First Professor Jones takes up the two common actions:   dismissal or continuance.  She explains why, as we know, dismissal is an unlikely drastic remedy, and why a continuance may be meaningless.  She doesn’t directly address one of the remedies I’ve asked for: prohibit the witness testimony.

She raises two very interesting remedies:  a “Brady Instruction,” partly based on Fed. R. Civ. Pro. 37(c), and an instruction on “Consciousness of a Weak Case Inference.”

United States v. Oliver.  This was a legal sufficiency of a desertion conviction.  Fascinating discussion of the role of CAAF and the legal standard of review at CAAF under Jackson.

Here is a link to the February AL.

urviving the Multiplicity/LIO Family Vortex

Not unexpected but it looks like the former CO, MCAS Cheery Point may be headed to court-martial.  See jdnews.com and Eyewitness News 9.  The EW9 reports that he pleaded guilty in civilian court yesterday.

Apparently there are additional issues, such as flying too soon after drinking.

Like the new format www.armfor.uscourts.gov.

Houston Chronicle reports:   An Army witness who says he stumbled onto a fellow soldier killing a U.S. superior at their patrol base in Iraq testified Monday he thought he was running toward nighttime enemy fire as he responded to gunshots — until he heard the shooter shout “I’ll kill you” in English and saw his face illuminated by his flashing rifle.  Sgt. Joseph Bozicevich, 41, of Minneapolis, faces a possible death sentence[.]

Florida Wires reports that:  An Army judge has ordered a recess in the court-martial of a Fort Stewart sergeant charged with murder in the 2008 slayings of a superior and a fellow U.S. soldier in Iraq.  Prosecutors rested their case against 41-year-old Sgt. Joseph Bozicevich (BOZ-eh-vich) of Minneapolis on Tuesday after two weeks of testimony. The judge has instructed Bozicevich’s attorneys to open their defense next Tuesday.  The decision to take a break in the case was prompted by Fort Stewart’s training calendar. Troops at the Georgia Army post have a four-day weekend coming up, with days off Friday and Monday, to give them extra leave around Mother’s Day.  [No doubt the defense will get a short weekend.]

‘Waiving’ Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation

Jane Campbell Moriarty
University of Akron School of Law
Hastings Constitutional Law Quarterly, Vol. 38, No. 4, 2011
U of Akron Legal Studies Research Paper No. 11-7

Abstract:
The proposed amendments to the ABA Criminal Justice Standards for Prosecutors and Defense Lawyers ("Proposed Standards") address a number of problematic issues related to the roles of both prosecutors and defense attorneys. This Symposium Article considers waiver of rights in the context of the Standards, focusing on guilty pleas and the so-called "preconditions" that prosecutors generally require before even entertaining the defendant’s proffer, colloquially termed "Queen for a Day" agreements It reviews the development in the law since 1993, the changes in the practice since that time, and the proposed changes to the Standards. The article focuses on the complex obligations of criminal defense attorneys to investigate their cases and give competent advice to their clients in the shadow of proffers and pleas. It concludes that attorneys in this role face an almost insoluble dilemma and hopes that the Proposed Standards provide an important first step to resolving it.