Court-Martial Trial Practice

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,

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.