Court-Martial Trial Practice

Navy Times reports more firings.

The commanding officer and executive officer of a Norfolk, Va.-based amphibious ship were fired Saturday while the ship was on deployment in the Mediterranean, according to an announcement posted on the Navy’s website.

Cmdr. Etta Jones, CO of the amphibious transport dock Ponce, was fired “due to demonstrated poor leadership, and failure to appropriately investigate, report, and hold accountable sailors found involved in hazing incidents,” the announcement said. Jones also “failed to properly handle a loaded weapon” during a security alert, which the announcement said “endangered some of her crew.”

NMCCA has decided United States v. Davenport.  This is another case alleging IAC for failing to advise of a SOR issue.  However, for me there’s another point in the case.  The petitioner also alleged he was told his conviction at Special court-martial was not a felony.

I have heard a special being referred to as a misdemeanor conviction and a general as a felony.  I think that’s wrong.  What the client should be told is that they will have to look at state law to determine if they have a felony.  I have had to tell clients that their SPCM conviction will be or may be considered a felony in the state to which they intend going upon release from the military.  On the other hand I’ve been pleased to be able to tell some clients that their GCM conviction is not considered a felony.

Navy Times reports that:  The former executive officer of a Mayport, Fla.-based cruiser is being court-martialed for alleged sexual assault, assault and sexual harassment, a Navy spokesman said Friday.

AP reports that SPC Wagnon, one of the Stryker Brigade accuseds is being released from pretrial confinement.

The Republic reports that:  LTC Lakin’s findings and sentence have been approved without any clemency being granted.

David H. Kwasniewski, NOTE:  Confrontation Clause Violations as Structural Defects, 96 CORNELL L. REV. 397 (2011).  The writer argues that some Crawford violations should be treated as structural defects in the trial and not subject to the Van Arsdell harmless error analysis.

Fayobserver reports:

A federal appeals court has sided with convicted killer Jeffrey MacDonald, ordering a second review of his claims of newly discovered evidence.

MacDonald, a former Army surgeon at Fort Bragg who is serving three life sentences for killing his pregnant wife and their 5-year-old and 2-year-old daughters in 1970, is seeking relief based on evidence that he says exonerates him.

Navy Times reports the relief of the CO, Naval Station, Rota, Spain.  He is the seventh commanding officer fired this year, and the fifth aviator.

AP reports rumors that Bradley Manning will be moved to Leavenworth.  While in some ways this may be good, he will now be separated from both his military as well as his civilian defense counsel by a great deal of distance.  Currently MAJ Kemkes is located at Fort Myer, VA, about 40 miles from Quantico.  Surely this will create logistics difficulty for the defense in a case such as this.

A support Bradley Manning website notes this and what they considered “isolation.”  But they don’t note that it also further isolates him from his military attorney.

Prof. Colin Miller has a timely and excellent discussion of eyewitness identification issues.

WHTM ABC 27 reports:

A hearing will be held at the U.S. Naval Academy to determine whether a midshipman will be court-martialed.

Patrick Edmond is accused of raping a female midshipman in October in the school’s dormitory. Following an investigation by the Naval Criminal Intelligence Service, he was charged last month with rape and issuing a false statement.

“SO VAST AN AREA OF LEGAL IRRESPONSIBILITY”? THE SUPERIOR ORDERS DEFENSE AND GOOD FAITH RELIANCE ON ADVICE OF COUNSEL, Mark W.S. Hobel,  111 COLUMBIA L. REV. 574 (2011).

This Note argues that the modern superior orders defense represents the most relevant and just paradigm for assessing the potential criminal liability of U.S. interrogators who claim that they were authorized and counseled bygovernment lawyers prior to using techniques that likely constituted torture.

However, recent U.S. law, most importantly sections of the Detainee Treatment Act of 2005, constitutes an extension of the superior orders defense as it would apply to interrogators, and may not only fully immunize government officials and agents involved in interrogations, but also disrupt emerging international legal norms surrounding the superior orders defense.
Part I of the Note discusses the development of the modern superior orders defense in international law and its general incorporation into national military laws, including the Uniform Code of Military Justice. Part II analyzes recent U.S. law and practice and concludes that it may deviate from the international legal standard for the superior orders defense. Part III suggests means through which U.S. practice may be brought back into conformity with the international standard, while at the same time contributing to its positive development.

I came across a case that had this interesting piece in it while discussing some IAC claims.

A defendant’s constitutional right to testify in his own behalf is implicit in the Fifth, Sixth, and Fourteenth Amendments. Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). However, "[w]hether the defendant is to testify is an important tactical decision as well as a matter of constitutional right." Brooks v. Tennessee, 406 U.S. 605, 612 (1972). "Although the ultimate decision whether to testify rests with the defendant, he is presumed to assent to his attorney’s tactical decision not to have him testify." United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993). A defendant’s "silence" after his attorney decides not to call him as a witness implies that he has waived the right to testify on his own behalf. See United States v. Pino-Noriega, 189 F.3d 1089, 1095 (9th Cir.) cert. denied, 528 U.S. 989 (1999).

As noted in Pino-Noriega, the failure to testify should "not be raised as an afterthought after conviction." Id. at 1096. Rather,