Court-Martial Trial Practice

Outside the Wire reports:  A spate of high-profile violent crimes committed by Fort Drum, N.Y. soldiers,  is being blamed on an increase in population and not combat stress, the Watertown Times reports.

Navy Times reports:  Naval Medical Center San Diego admitted 15 sailors over a five-month period last year for use of a synthetic drug that mimics marijuana, The San Diego Union-Tribune reported Tuesday.  Side effects of the drug often known as spice include hallucinations, paranoia and confusion that can become debilitating, doctors said, adding that symptoms can often last days.

Stars & Stripes reports that Mr. Galligan will meet with the commander at Fort Hood in May to discuss a non-capital referral.

Here is the January edition of Army Lawyer.

Simplifying Discovery and Production: Using Easy Frameworks to Evaluate the 2009 Term of Cases

Researching Current and Historical Legislation Using THOMAS

CAAF has issued its opinion in United States v. Beaty.

Basically the court holds that the maximum punishment for possession of child pornography in cartoon, virtual, or anything other than real life is four months and a similar term in forfeitures.  The federal statute does not criminalize such conduct therefore there’s no federal punishment for the “offense.”  Thus you have to punish as a general disorder or neglect under Article 134, UCMJ.

Stand by for some statutory or regulatory “fix.”

When arguing for admission of MRE412 evidence, counsel should make sure the MJ knows she can give a limiting instruction.  And for that matter trial counsel should definitely ask for one.  The appellate courts regularly approve of limiting instructions when it’s the accused having bad evidence or erroneous evidence introduced against them.  See e.g. United States v. Dacosta, 63 M.J. 575 (A. Ct. Crim. App. 2006) for a discussion of limiting instructions regarding MRE 413.   See also, United States v. Morris, 47 M.J. 695 (N-M Ct. Crim. App. 1997)(military judge eliminated any possible prejudice by giving a limiting instruction that the members could not use this admission as evidence that the appellant had a criminal disposition or was a bad person.).  There is no reason a limiting instruction cannot aid in admitting relevant evidence.

See e.g., United States v. Tiller, 41 M.J. 823, 827 (N.M.C.M.R. 1995):

This evidence, if admitted, would not be unduly prejudicial under Mil. R. Evid. 412(c)(3), or Mil. R. Evid. 403, with a proper limiting instruction to the members. United States v. Dorsey, 16 M.J. [1 (C.M.A. 1983] at 7-8 (holding that proper limiting instruction would protect against unfair prejudice and also questioning use of a balancing test if the evidence is determined to be constitutionally required).

Here’s Admiral Harvey commenting on the USS PONCE (LPD) case.  Listed in a piece is a summary of the prior DFC’s this year:

• USS THE SULLIVANS– Multiple operational incidents culminating with a buoy collision that damaged the port screw while deployed.
• USS JOHN L HALL – Collision with a pier while deployed
• USS TRUXTUN – Inappropriate relationship with a junior member of the wardroom.
• NCTS Bahrain – Inappropriate relationships with several members of the command.
• USS GUNSTON HALL – Sexual harassment, maltreatment of subordinates, assault, drunk and disorderly conduct. Command Master Chief (CMC) also relieved for failure to take appropriate action for inappropriate/unprofessional behavior.
• USS MEMPHIS – Cheating ring involving exams.
• NMCB 21 – Failure to address inappropriate/unprofessional behavior by subordinates. CMC also relieved for failure to take appropriate action for fraternization and unduly familiar relationships.
• USS ENTERPRISE – Exceptional lack of judgment while XO of ENTERPRISE.
• USS STOUT – Failure to take action to deter unprofessional behavior in overseas ports, hostile command climate. CMC also relieved for failure to correct a pervasive pattern of unprofessional behavior by the ship’s crew.
• USS PONCE – Dereliction of duty, unprofessional conduct, favoritism, hostile command climate. Executive Officer (XO also relieved for being complicit by action and inaction in creating a hostile, unprofessional and unsafe environment onboard PONCE.

Federalevidence blog notes the case of United States v. Cioni, __ F.3d __ (4th Cir. April 20, 2011) (No. 09–4321).  This is a reminder of some limits placed on the application of Mil. R. Evid. 412.

[T]he circuit found that the trial judge erred in applying the shield to a case not involving charges of sexual misconduct. The case emphasizes the limited applicability of the FRE rape shield rule.  (Emphasis added.) . . .

The Cioni case notes a small but important detail in the application of FRE 412 as a rape shield law. Where sexual issues are not at stake in the case, the victim is fair game for impeachment by evidence of sexual misconduct, if the alleged sexual misconduct is relevant. Apparently in Cioni it was relevant. As noted by the circuit the error of excluding the sexual misconduct evidence of the victim’s other sexual liaisons under FRE 412 was harmless. It was harmless because the evidence excluded by the court’s application of FRE 412 was merely a cumulation of evidence that had "already been admitted into evidence" by other means at the defendant’s trial.

Thanks to CAAFLog here is a magistrate judge opinion regarding some DUI cases at Quantico.  Basically, the current practice at Quantico is that a military person who gets caught for DUI on base is offered NJP.  After that, the SAUSA (a Marine JA assigned at Quantico) then prosecutes the case in federal court.  Seems pretty icky.   Magistrate Jones of the Eastern District dismissed charges against five Marines because they were not properly informed of the consequences of accepting (or declining) NJP – that being the practice at Quantico of prosecuting the case in federal court, even if NJP has been imposed.  Judge Jones notes a structural deficiency in the pre NJP advice process.

however, the right to confer with independent counsel prior to acceptance of non-judicial punishment recognized in Booker is meaningless if that counsel is deficient. Assuming that the conversations between accused servicemembers and the JAG officers provided to them qualify as “counsel,” the evidence before the court establishes that the counsel provided to these defendants was not independent. The JAG lawyers were instructed to avoid discussion of the servicemembers’ individual circumstances and thereby avoided giving advice tailored to a servicemember’s situation. A further consequence of those procedures is that, by design, the counseling provided is deficient because it does not afford accused servicemembers the information, detailed above, that is necessary to validate a waiver that results in prosecution in this court.

United States v. Espinosa et al., No. 1:10mj453 et al., slip op. (E.D.Va. Apr. 25, 2011).

PFC Holmes is trying to follow in Wagnon’s footsteps, the Boise Weekly reports.  I did see this as a little curious:

A forensic pathologist testified for the defense today that photos of the victim’s body did not conclusively link shotgun wounds to Holmes’ machine gun.

I would hope that to be the case.  But probably a little off in the reporting a difference between a shotgun and “machine gun.”

The Greeley Gazette reports that LTC Lakin will be released to appellate leave on Saturday, 14 May 2011.  Apparently he will arrive at BWI.

Those desiring to greet Lakin at the airport are asked to pre-register with the action fund website. This will help them provide approximate counts to airport security teams.

Navy Times reports: 

A senior officer deployed with the Carl Vinson Carrier Strike Group operating in the Arabian Sea was fired Saturday while an investigation looks into allegations of an “inappropriate relationship,” the Navy announced Monday.

Capt. Donald Hornbeck, commodore of San Diego-based Destroyer Squadron 1, was relieved by the Vinson strike group commander, Rear Adm. Samuel Perez, Navy officials said.