Court-Martial Trial Practice

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,

Professor Colin Miller summarizes the progress of a reporter’s privilege in the 36th –40th states which now have one.  West VA became the 40th a few days ago.

Outside the Wire reports:

Was a brigade commander an instigator or just asleep at the switch while the 5th Stryker Brigade, 2nd Infantry Division, “kill team” was allegedly murdering civilians?

An Army investigation finds no “causal relationship” between Col. Harry D. Tunnell IV’s aggressive leadership and the killings, but it criticizes Tunnell for neglectfulness that created a climate ripe for misconduct.

Stars & Stripes reports:

The Spangdahlem airman behind the wheel of the car that crashed last July, killing two other airmen, goes to court Monday to face manslaughter and negligent homicide charges, an Air Force spokeswoman said Friday.

Bryan County News reports some of the voir dire in Bozicvich.  It looks like they started out with 16 potential members and have gotten down to 12.  It’s not clear if any new members are to be appointed, or the status of preemptory challenges.

What happens to the client after NJP and administrative discharge.  In Buckingham v. Secretary of the Navy, ENS Buckingham sought reinstatement in the naval service and cancellation of recoupment for his ROTC education.

ENS Buckingham shop-lifted from the NEX and was caught.  His CO imposed a LOR at NJP.  Subsequently the CO asked NMPC not to process for separation (ha!).  Ultimately ENS Buckingham was separated with a General discharge and then he was charged recoupment of almost $83K, the prorated amount of his eduction at Navy expense.

BCNR declined to reinstate or set-aside the recoupment action.  So ENS Buckingham went to court.

Here is a link to a clemency letter forwarded by CDR Kerchner to MAJ Kemkes.  It has been published by him on obamareleaseyourrecords.com.

He has also posted this on thepostemail, under the title “Obama Unfit for Command.”

ACCA has published United States v. Conrady.  This case continues the appellate look at how prosecutors may, if at all, use possession of child pornography as Mil. R. 414 evidence.  The issue of note from the opinion is:

THE MILITARY JUDGE ABUSED HIS DISCRETION IN ADMITTING AN IMAGE OF CHILD PORNOGRAPHY AS MILITARY RULE OF EVIDENCE 414 EVIDENCE.

The court found harmless error.

Navy Times reports:

A Navy petty officer who was investigated for violating the military’s ban on openly gay service members says a review board at his California base has voted against his discharge.

Opinio Juris reports on USACIL.  They begin:

On paper, courts-martial are far more fair than military commissions — the substantive law they apply is superior, and their rules of evidence and procedure are designed to protect defendants, not ensure convictions.

But then here is the kicker:

A piece of such humor came over my electronic transom today.

I am a Military Defense Paralegal in the United States Air Force stationed at xxx. I am currently doing some research for my leadership at the AF Trial Defense Western/Pacific Region. We are collecting data to articulate the value of our services to our clients. As you know we do not charge for our services, however over the years the military legal offices have kept track of the savings they have provided military members for legal assistance matters i.e. Powers of Attorney, Wills, and other legal services. The AF Defense community would like to start keeping track of just how much money it would cost for military members to be represented by civilian counsel. This data is being collected only for internal use and performance reports for Military Defense Counsel and Military Defense Paralegals. While I realize the cost for defense services varies with each case, we would like to get an estimate cost for the below listed services. If you could give me a low and high estimate cost for each of the below services, I will average the results with other responses. Thank you for taking the time to respond to this request. If you have any questions, please call me at my office xxx, my cell xxx, or email xxx.