Court-Martial Trial Practice

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.

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.