Court-Martial Trial Practice

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.

Our SANE reporter at Obama Conspiracy Theories has this, which is a potential welcome home poster for LTC Lakin on 14 May.

Deborah Tuerkheimer, Science-Dependent Prosecution and the Problem of Epistemic Contingency:  A Study of Shaken Baby Syndrome, 62 ALABAMA L. REV. 513 (2011).

With rare exception, SBS prosecutions rest entirely on the testimony of medical experts.

The construction of crime in this manner is rather extraordinary, particularly since— as a general proposition—scientific understandings develop over time.  In the specific context of SBS, dramatic changes have occurred since the 1990s, when the prosecution template emerged.  While forensic claims on this area remain highly contested, the science underlying SBS has decisively evolved. By this, I mean both that the evidentiary basis for SBS has been effectively challenged18 and—notwithstanding outstanding points of dispute—that large and highly significant areas of consensus surrounding SBS have shifted.  Three areas of changed consensus are, from a criminal justice perspective, of critical importance.

On 21 October 2008 the NMCCA decided and affirmed in United States v. Burleson, 2008 CCA LEXIS 386.  In the original case he was sentenced to: The appellant was sentenced to 20 years confinement, total forfeitures, reduction to pay grade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged.

On 18 May 2010, CAAF reversed in part and sent the case back to NMCCA for sentence reassessment or a rehearing.  Apparently NMCCA sent the case back for a rehearing.

On further consideration of the granted issue (68 M.J. 163) in light of United States v. Jones, 68 M.J. 465, 2010 CAAF LEXIS 393 (C.A.A.F. 2010), we hold that indecent assault under Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006), is not a lesser included offense of rape under Article 120, UCMJ, 10 U.S.C. § 920 (2006).