Court-Martial Trial Practice Blog

ACCA expert assistance case

August 20, 2010 | The Law Office of Philip D. Cave

ACCA has an excellent unpublished opinion in United States v. McGinnis, No. ARMY 20071204 (A. Ct. Crim. App. Aug. 19, 2010). Here it is with liberal sprinklings of Dwight’s synopsis.

Appellant was convicted of battering his 8-month-old son. His GT score was 90 and he had a reputation for being a dim bulb, submissive, and compliant. His platoon sergeant testified that he wanted to please others and avoid angering people. Army CID agents interrogated SPC McGinnis for 5 1/2 hours. For three hours, he denied wrongdoing. He eventually made some inculpatory statements. After the interrogation ended, SPC McGinnis told his platoon sergeant that he told CID he hadn’t hurt his kids, but they wouldn’t take no for an answer.

SPC McGinnis’s defense counsel asked the CA to retain a specific false confession expert (Ofshe) for the defense. After the CA denied the request, the defense filed a motion to compel, which the military judge also denied. Wrong decides ACCA.

Crime spree Astronaut more than grounded

August 20, 2010 | The Law Office of Philip D. Cave

Navy Times reports:

A former astronaut who gained notoriety for stalking a romantic rival after driving 900 miles straight from Houston is expected to be discharged from the Navy.

A board of inquiry made up of three Navy admirals voted 3-0 Thursday give Navy Capt. Lisa Nowak an “other than honorable” discharge and downgrade her rank from captain to commander, which affects her paygrade and pension.

ACCA on IAC

August 20, 2010 | The Law Office of Philip D. Cave

In United States v. Darling, ACCA affirmed because appellant could not establish the prejudice prong of an IAC “claim.” This is worth reading for those cases where the accused is found not guilty after a contested case, but during sentencing there is a concession that the accused was actually guilty. For the defense counsel this case addresses the issues of how to do sentencing and try to get a lower sentence.

Appellate defense counsel initially raised one assignment of error to this court – that appellant’s conviction for uttering checks with intent to defraud was legally and factually insufficient. Upon our initial review, we specified the following issues:

I.

Coast Guard certified issues to CAAF

August 20, 2010 | The Law Office of Philip D. Cave

The Coast Guard has certified the following issues to CAAF.

No. 10-6010/CG. U. S., Appellant v. ANDREW L. DALY, Appellee. CCA 001-62-10. Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED IN APPLYIING THE STANDARD OF FAIR NOTICE, AS OPPOSED TO MISTAKE OF LAW, IN AFFIRMING THE MILITARY JUDGE’S FINDING THAT, UNDER COAST GUARD REGULATIONS, THE ACCUSED WOULD NOT HAVE KNOWN HIS CONDUCT WAS CRIMINAL AND THEREFORE HE COULD NOT BE PUNISHED UNDE ARTICLE 134, UCMJ.

NMCCA sets aside a Article 120 case for instructional error

August 19, 2010 | The Law Office of Philip D. Cave

In the United States v. Jones the facts cited by the court show a consent defense. However the defense counsel did not request an instruction on the affirmative defense and the military judge did not give one. There being no evidence of an affirmative waiver the findings and sentence were set aside.

A military judge has a sua sponte duty to instruct the members on an affirmative defense if it is reasonably raised by the evidence. United States v. McDonald, 57 M.J. 18, 20
(C.A.A.F. 2002). Failure by the defense counsel to request the instruction does not waive the error. United States v. Brown, 43 M.J. 187, 189 (C.A.A.F. 1995)(citing United States v. Taylor, 26 M.J. 127, 129 (C.M.A. 1988). Failure by the military judge to instruct on an affirmative defense presents a constitutional error which must be tested for prejudice. For such an error to be deemed harmless beyond a reasonable doubt, the Government must prove that the members would have reached the same verdict absent the error. Neder v. United States, 527 U.S. 1, 19 (1999).

We agree with the appellant that the affirmative defense of consent was reasonably raised by the appellant’s sworn testimony. As noted above, the appellant posited a scenario in which the purported victim, Cpl B, was an unambiguously willing participant in the sexual contact alleged, ostensibly even the instigator and aggressor.

Up periscope

August 19, 2010 | The Law Office of Philip D. Cave

WOKV.com reports:

The NASA astronaut who made international headlines after attacking a romantic rival with pepper spray at the Orlando International Airport in 2007 spent Thursday in a military courtroom at Naval Air Station Jacksonville.

The government is asking a Navy review board to recommend discharging Captain Lisa Nowak and reduce her rank and pay grade.

LTC Lakin

August 18, 2010 | The Law Office of Philip D. Cave

World News Daily reports:

A reported threat by a senior Army officer to "Taser" another officer on trial for challenging Barack Obama’s eligibility to be president could be a serious "command influence" issue that could taint the case, according to an expert.

Here is the Greeley Gazette article referred to:

Up periscope

August 16, 2010 | The Law Office of Philip D. Cave

Huffington Post has a piece about MEJA.

In the perpetual debate over legal accountability of, and prosecution if necessary, of private military and security contractors one often sees the arguments reduced to two simplistic arguments.

PMSC opponents argue the contractors argue in a legal vacuum and with utter impunity. This is, of course, as anyone who has even done the most cursory reading on the subject knows, is utter nonsense. . . .

LTC Lakin 6

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

TPMMuckracker his this update, on the alleged “threats” from LTC Brodsky.

Late Update: Margaret Hemenway of the American Patriot Foundation told TPM that the account of Brodsky’s comment and Lakin’s response came from Lakin himself. “It’s bizarre,” she added of Brodsky’s “threat,” and “looks very bad.” Hemenway continued that they’re “going to have to wait and see how they deal with this,” and suggested that the APF is anticipating some kind of disciplinary action against Brodsky. “What was he thinking?” she wondered repeatedly.

Late, Late Update Army Public Affairs Officer LTC Robert Manning told TPM that he was “there at the arraignment and I did not hear” LTC Brodsky’s alleged comments. “I was there at the proceedings the entire time,” he said, adding that the Army is “committed to ensuring that Lt. Col. Lakin receives fair treatment and due process.”

LTC Lakin 5

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

World News Daily has a piece on LTC Lakin and his radio inteview with G. Gordon Liddy. Here are a couple of interesting points from the article.

“We are today (12 August 2010) officially requesting that discovery,” Jensen said. “If the government refuses to give it to us, then we will, a week from today, file a motion to compel discovery.

“I can’t think of a single reason why the judge would take the government’s position,” he said.