Court-Martial Trial Practice Blog

Why your client wants to stay at the DB

September 17, 2010 | The Law Office of Philip D. Cave

Danger Will Robinson.

United States v. Parker and Woodruff

In these consolidated appeals, the Government challenged the district court’s orders dismissing its 18 U.S.C. § 4248 (2006) petitions for civil commitment of Lonnie Parker and James Woodruff, who were both convicted of various sex offenses and sentenced in military court-martial proceedings, but are currently housed within a Bureau of Prisons facility. The district court dismissed the Government’s petitions because it found that "§ 4248 does not apply to military prisoners [since] they are not `in the custody of the Bureau of Prisons’ pursuant to 18 U.S.C. § 4248(a)." In so holding, the district court relied on its order in a related case, United States v. Joshua, No. 5:09-hc-02035-BR (E.D.N.C. Jan. 13, 2010), which was recently affirmed by this court. See United States v. Joshua, 607 F.3d 379 (4th Cir. 2010) (holding that an individual convicted and sentenced by United States Army court-martial but housed within a facility operated by the Bureau of Prisons is not "in the custody of the Bureau of Prisons" under § 4248(a)). The Government concedes that these appeals present the same issue addressed in, and that the disposition of the appeals is controlled by Joshua.

LTC Lakin sitrep

September 17, 2010 | The Law Office of Philip D. Cave

This is the 13th day that APF (safeguardourconstitution), LTC Lakin’s support site, has failed to post the military judge’s findings and conclusions, and advertises as “Breaking News,” “Judge to Rules (sic) . . ..”

This is the 13th day that LTC Lakin and his team have failed to file a petition for a writ of mandamus or prohibition with the Army Court of Criminal Appeals. (I’m reliably informed that no such petition has been filed as of yesterday.)

1. Delay in filing the writ will not necessarily gain delay in the trial.

Diamond petition filed

September 15, 2010 | The Law Office of Philip D. Cave

The CAAF Daily Journal for 14 September 2010 notes the filing of a petition for review by John M. Diamond.

Here is a FayObserver.com piece which documents some of the history of this case, including Michelle Theer’s abortive efforts to get a new trial.

According to court documents, witnesses for the prosecution repeatedly testified that Theer did not cooperate with the investigation and a prosecutor told the jury in closing arguments that Theer invoked her right to a lawyer when a co-defendant was arrested.

Up periscope

September 15, 2010 | The Law Office of Philip D. Cave

This is the 13th day that APF (safeguardourconstitution), LTC Lakin’s support site, has failed to post the military judge’s findings and conclusions, and advertises as “Breaking News,” “Judge to Rules (sic) . . ..”

SLDN reports:

Servicemembers Legal Defense Network (SLDN), a national, legal services and policy organization dedicated to ending "Don’t Ask, Don’t Tell" (DADT), released a set of formal recommendations today to the Comprehensive Review Working Group, established to author a report on "how" to implement repeal, not "if" repeal should happen.

MAJ Hasan sitrep

September 15, 2010 | The Law Office of Philip D. Cave

WFAA.com reports that:

Fort Hood shooting suspect Maj. Nidal Hasan’s attorney tells News 8 he will ask a military judge Thursday morning to close the upcoming Article 32 Hearing for his client to the public and press.

“I think it’s necessary to ensure he can eventually get a fair trial at Fort Hood,” (Ret.) Col. John Galligan, Hasan’s civilian attorney, told News 8 Wednesday. “We need to make sure his Sixth Amendment rights are not jeopardized.”

AFCCA denies a new trial

September 15, 2010 | The Law Office of Philip D. Cave

The Air Force Court of Criminal Appeals has issued an opinion in United States v. Hull.

The issues on appeal are: whether the staff judge advocate (SJA) erred by advising the convening authority (CA), pursuant to Rule for Courts-Martial (R.C.M.) 1106, that no new trial was warranted and whether the CA erred by failing to order a new trial despite the SJA’s acknowledgement that the appellant had presented new evidence that fell within the parameters of R.C.M. 1210. Further, the appellant filed a petition for a new trial pursuant to Article 73, UCMJ, 10 U.S.C. § 873.

AFCCA denied relief on the merits of the appeal and denied a new trial. AFCCA reasoned that even if the information was newly discovered (AFCCA was not certain it could not have been obtained during pretrial preparations), the evidence would not,

ACCA on post-trial honorable discharges

September 15, 2010 | The Law Office of Philip D. Cave

Here is a link to United States v. Brasington., decided 13 September 2010. It is not unusual for an appellant to be issued a DD214, Honorable Discharge, sometime after a court-martial at which the appellant was adjudged a punitive discharge.

In this case, we are asked, following remand, whether an honorable discharge, effective after this court’s affirming a sentence that included a bad-conduct discharge, has the effect of remitting that discharge. We hold appellant’s administrative discharge was voidable, properly voided, and did not remit appellant’s premature discharge.

This was a rather odd situation because the appellant was an active duty Soldier and it was the Reserve command giving him the discharge. ACCA found that the Commander, HRC-StLouis had no authority to discharge appellant.

Padilla in practice

September 14, 2010 | The Law Office of Philip D. Cave

Here is a training video and handouts from NACDL. This may be helpful with your junior enlisted court-martial clients who are foreign nationals.

In Padilla v. Kentucky, the Supreme Court held that defense lawyers must affirmatively and correctly advise their clients about the immigration consequences of entering a plea and failure to do so constitutes ineffective assistance of counsel. NACDL, in collaboration with the Defending Immigrants Partnership, will present a free live online training to discuss defense counsel’s duty under Padilla and related issues. Expert faculty analyze the Padilla decision, outline the steps defense counsel must take to provide effective assistance of counsel to their non-citizen clients, and provide essential instruction[.]

LTC Lakin sitrep

September 14, 2010 | The Law Office of Philip D. Cave

This is the 12th day that APF (safeguardourconstitution), LTC Lakin’s support site, has failed to post the military judge’s findings and conclusions, and advertises as “Breaking News,” “Judge to Rules (sic) . . ..”

The Post & Email reports today, submitted by Maj. Gen. Vallely:

The current Lakin defense strategy is limited to an ongoing search for a missing birth certificate that is of no real consequence, and they have been denied discovery access to any of Obama records, as well as anyone who has had access to those records. There is no defense for Lakin on this basis. . . .

Urinalysis cases

September 14, 2010 | The Law Office of Philip D. Cave

In two days CAAF has granted two urinalysis cases citing to Melendez-Diaz. Note Blazier is still undecided. In the Air Force case the defense did not object, in the Navy case the defense did object.

No. 10-0668/AF. U.S. v. Jerrod D. NUTT. CCA S31600. Review granted on the following issues:

WHETHER, UNDER MELENDEZ-DIAZ v. MASACHUSETTS, 129 S.CT. 2527 (2009), THE ADMISSION OF THE DRUG TESTING REPORT VIOLATES APPELLANT’S SIXTH AMENDMENT RIGHTS UNDER THE CONFRONTATION CLAUSE.