Court-Martial Trial Practice

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.

Army Times reports:

Four members of the Army Criminal Investigation Command at Fort Bragg have been suspended for the duration of an FBI probe.

Army CID spokesman Christopher Grey confirmed the suspensions Thursday. The four were attached to the division’s drug investigation unit.

WRBLNews3 reports:

The jury selection for the murder trial began Tuesday on post at Fort Stewart just outside Savannah. Sergeant Joseph Bozicevich is charged with the 2008 murder of two fellow soldiers near Baghdad. He pleaded not guilty. Opening statements are expected in mid- April.

We sat down with a local defense attorney who has tried a court-martial murder case to talk about the judge’s decision to omit "gory" autopsy photos.

United States v. Davis gives a quick reminder of Pierce credit issues.

AFCCA upholds the conviction of a male airman for indecent exposure in the male showers.  See United States v. Walker.

AFCCA has decided an interesting case of de facto immunity.  See United States v. Long.  Apparently the accused was facing civilian charges.  Based on a conversation between his ADC and the chief of justice the appellant plead nolo contendre in his civilian case.  Rather than the expected administrative discharge action the Air Force court-martialed him.  At trial Appellant did not assert and litigate the alleged de facto immunity.  On appeal he claimed that the CoJ’s statement that if he took the civilian court plea the USAF intended to admin him was a grant of immunity – NOT said AFCCA.  On this I have to agree.  I don’t think it’s ever reasonable to accept the representations of the TC about case disposition, especially the Air Force.  If the SJA had personally “blessed it,” maybe.  But even then it depends on the relationship between the SJA and the CA. 

In Ware v. State, the Alabama Supreme Court had this to say:

In answering this question in the negative, this Court finds persuasive the rational and holding in United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006). The decision in Magyari is not binding on this Court and has no precedential value because it is not an opinion of the Alabama Supreme Court. However, even though we are not relying on it for its precedential value, we agree with the analysis in Magyari addressing the issue whether evidence is testimonial in nature for purposes of the confrontation clause analysis and incorporate its language on that issue, quoted below, in this opinion, which will have precedential effect. We also acknowledge thatMagyari was decided before Melendez-Diaz.