Court-Martial Trial Practice

in the civilian courts.  Sentencing Law & Policy reports:

The Ninth Circuit has an interesting opinion concerning the withdrawal of pleas in US v. Bonilla, No. 09-10307 (9th Cir. March 11, 2011) (available here), which relies heavily on the Supreme Court’s important Sixth Amendment ruling last Term in Padilla v. Kentucky.  Here is how the Bonilla opinion begins:

Jose Hernandez Bonilla, Jr. appeals the district court’s denial of his pre-sentencing motion to withdraw his guilty plea.  Bonilla pled guilty to possession of an unregistered firearm and to being a felon in possession of a firearm.  He has been a lawful permanent resident of the United States for over thirty years; his wife and two children are all U.S. citizens.  When shortly after he had entered his plea Bonilla was for the first time informed that he would be deported on the basis of his plea, he moved to withdraw it, asserting that he would not have pled had he known about the immigration consequences.  We hold that the district court’s denial of Bonilla’s motion to withdraw his plea was an abuse of its discretion.

Huffington Post reports that the USNA has expelled three for synthetic spice related charges, for a total of 11 dismissals in 2011.

Air Force Times reports further action on the military draw down:  12 Article 15’s for involvement with “spice.”

According to Foreign Policy:

Fox News reports:

The Army announced Thursday it will punish nine officers in connection with the Fort Hoodshootings for "leadership failures relating to the career of Maj. Hasan."

MSNBC has this piece.

The Marine Corps says it has issued a suicide-proof sleeping garment to the imprisoned Army private suspected of giving classified material to WikiLeaks.

Professor Friedman reminds us that we have other confrontation issues beyond the non-testifying witness concern.

Focus on Crawford-related issues should not obscure the fact that many significant Confrontation Clause questions concern the scope of the accused’s right to cross-examine a witness who actually testifies at trial. Adam Liptak of the New York Times has alerted me to an interesting decision issued yesterday by the Second Circuit in United States v. Treacy.

The Second Circuit held that the limitations on cross- examination were improper. It declared that

federalevidence.com reports on:

In trial for mail fraud and theft from a program receiving federal funds, trial court error in permitting the prosecutor to cross-examine the defendant state legislator as to her opinion of whether other witnesses were lying and lacked veracity, however error did not rise to plain error; joining consensus of six other circuits on the impropriety of requiring a defendant to testify as to the veracity of other witnesses, in United States v. Schmitz, __ F.3d __ (11th Cir. March 4, 2011) (No. 09-14452)

The Eleventh Circuit joined the First, Second, Third, Fifth, Seventh, and Ninth Circuits in finding that a prosecutor’s questions on cross-examinaton of the defendant as to whether other witnesses — specifically those telling a different story than the defendant — are lying. The reasons for this limit on cross-examination are diverse, but carefully explained in a recent case by the Eleventh Circuit.

United States v. Medina.

While this case, like Prather, involves the “substantially incapacitated” element of aggravated sexual assault under Article 120(c)(2), UCMJ, under the unique circumstances of this case the instructions provided by the military judge did not employ the statutory provision regarding the defense’s burden of proof on the affirmative defense of consent.  We therefore affirm the lower court’s decision.

Initial reaction is that unless and until there is some statutory fix, military judges should erroneously instruct the members.  This is what Judge Baker’s concurring opinion “decides.”  While the instructions would arguably be erroneous, the error would benefit the accused and potentially remove the constitutional infirmity.

Stars & Stripes reports:

The Marine Corps on Okinawa has created a crime-tips website to combat the use of designer drugs known as Spice, officials said Thursday.

ACCA decided United States v. Baker, a government appeal.  ACCA decided that the military judge abused his discretion by suppressing a “show-up” and in-court identification.

Army Times reports:

A former command sergeant major at Walter Reed Army Medical Center in Washington, D.C., fired for faking his record and wearing numerous unauthorized awards and decorations, was sentenced to six months imprisonment and a demotion to staff sergeant.

10News reports: