Court-Martial Trial Practice Blog

A new MEJA prosecution

July 28, 2010 | The Law Office of Philip D. Cave

A former U.S. Army contractor was arrested today in Newport News, Va., for allegedly killing one sailor and seriously injuring another in a vehicular collision in Kuwait[.]

Hanks is charged under the Military Extraterritorial Jurisdiction Act (MEJA), a statute that gives U.S. courts jurisdiction to prosecute crimes committed outside the United States by, among others, contractors or subcontractors of the Department of Defense. If convicted, Hanks faces up to 10 years in prison.
The case was investigated by the U.S. Army’s Criminal Investigative Division and is being prosecuted by Senior Trial Attorneys Micah D. Pharris and Steven C. Parker of the Criminal Division’s Human Rights and Special Prosecutions Section (HRSP) and Assistant U.S. Attorney Eric Hurt for the Eastern District of Virginia.

Newby decided at CGCCA

July 27, 2010 | The Law Office of Philip D. Cave

United States v. Newby has been decided and has a reminder for trial defense counsel.

The military judge made a clemency recommendation.

The SJAR failed to note the clemency recommendation.

Nerad decided at CAAF

July 27, 2010 | The Law Office of Philip D. Cave

CAAF has issued an opinion in United States v. Nerad. RYAN, J., delivered the opinion of the Court, in which EFFRON, C.J., and ERDMANN, J., joined. BAKER, J., filed a separate opinion concurring in the result. STUCKY, J., filed a separate dissenting opinion.

Nerad gets a remand to AFCCA for the court to clarify it’s ruling.

Collateral consequences

July 27, 2010 | The Law Office of Philip D. Cave

Thanks (again) to CAAFLog for finding a case relating to collateral consequences — Moutrie v. Secretary of the Army, __ F. Supp. 2d __, No. CV 09-4456-SVC (RC) (C.D. Cal. July 7, 2010).

Up until, oh I don’t remember the date now, but quite a number of years ago, a military prisoner who reached his minimum release date (MRD) was released without any restrictions on liberty post release. That lead to a bit of gamesmanship before the clemency and parole boards. If a prisoner was up for parole consideration and he had less than a year to go for his MRD the prisoner would usually waive parole consideration. They were willing to serve the months rather than be paroled. That was because a paroled prisoner would waive all of their good time. But more importantly be subject to many onerous conditions of parole.

(Note to trial practitioners. Before advising your client about post-trial matters I would recommend you consult and you review with the client DODI 1325.7. This regulation has a number of important rules you can educate your client about (including, yes, sex offenders). Although it does not contain Rule No. 1 for obtaining parole: that you “have taken responsibility for your confining offenses.” Words to that effect must show up somewhere in confinement evaluations and recommendations. That works pretty well in a GP case. If you are a defense counsel and have NG but found guilty case give me a call, all is not lost. [Having sat as a voting member of the Navy C&PB, albeit some years ago, I’d venture that no other rule is as important to parole than Rule No. 1. You may have good scores on the points based classification system and good reports and no discipline reports, but . . . you clearly haven’t learned any lessons.] Anyway. Upon entry to confinement the facility calculates the full term date (FTD), that’s day for day service of sentence, minus credit for pretrial confinement or an Article 13, UCMJ, violation, or effect of a PTA. Then they calculate automatic good time credit based on the length of approved sentence, which becomes the minimum release date (MRD). Absent loss of good-time or clemency or parole that’s when the prisoner can normally expect to be released.)

USS Indianapolis

July 25, 2010 | The Law Office of Philip D. Cave

The News-Gazette reports an excerpt from the Congressional Record about the sinking of the USS Indianapolis and the subsequent court-martial of the commanding officer for the loss of his ship. The ship was sunk on 30 July 1945. The ultimate

(b) SENSE OF CONGRESS.–(1) It is the sense of Congress, on the basis of the facts presented in a public hearing conducted by the Committee on Armed Services of the Senate on September 14, 1999, including evidence not available at the time of Captain Charles Butler McVay’s court-martial, and on the basis of extensive interviews and questioning of witnesses and knowledgeable officials and a review of the record of the court-martial for and in that hearing, that–

(A) recognizing that the Secretary of the Navy remitted the sentence of the court-martial and that Admiral Nimitz, as Chief of Naval Operations, restored Captain McVay to active duty, the American people should now recognize Captain McVay’s lack of culpability for the tragic loss of the U.S.S. Indianapolis and the lives of the men who died as a result of her sinking; and

Up periscope

July 25, 2010 | The Law Office of Philip D. Cave

I previously posted about this but here is a more detailed Navy Times report about CSM Crump, formerly of WRAMC.

A former command sergeant major at Walter Reed Army Medical Center fired for allegedly faking his record and wearing unauthorized awards and decorations faces military discipline for a series of bold deceptions that span several years and multiple commands, according to the charges against him.

World News Daily has a piece on LTC Lakin’s OER issue. The piece seems to accept without question or fact-check the allegation that the, “Army convicted me without trial.” It would seem a proper journalistic analysis would review the actual report (still publically unavailable) and review in comparison to AR 623-3 .

Up periscope 55

July 23, 2010 | The Law Office of Philip D. Cave

News8 reports that:

In a court martial trial that concluded after a panel’s deliberations stretched into the early hours of Saturday morning at Andrews Joint Base, a local Airman First Class was found not guilty of the charges brought against him.

As ABC 7 News reported last week, the charges were brought against A1C Marvin Skipper, Jr., after he fell asleep a second time while on security duty–even though doctors had ordered that he not be placed on that type of duty for medical reasons.

Up periscope 54

July 23, 2010 | The Law Office of Philip D. Cave

CNN reports that:

A top military official at Walter Reed Army Medical Center has been relieved of duty and charged with knowingly falsifying his personnel records.

Command Sgt. Maj. Stoney Crump, the senior enlisted officer for the Medical Center Brigade, had the “intent to deceive” when he submitted a false official record incorrectly stating that he had attended several military educational courses, according to the Army charge sheet.

Up periscope 53

July 23, 2010 | The Law Office of Philip D. Cave

The Daily Weekly reports on a Fort Lewis Soldier convicted in civilian court of murder. The piece that caught my eye was this:

Since the start of the war in Iraq in 2003, there have been at least a dozen slayings on Western Washington soil alone involving active troops or veterans of Iraq. The body count includes seven wives, a girlfriend, and one child; six other children have lost one or both parents to death or imprisonment. Most gruesome was the double slaying by an attractive Fort Lewis soldier, Spc. Ivette Davila, 22, who shot, killed and then poured acid on the faces of Timothy Miller, 27, and Randi Miller, 25, a military couple stationed at the fort, then kidnapped their child.

Army Times reports:

Humor in uniform lawyering

July 21, 2010 | The Law Office of Philip D. Cave

This report from Savannah.now questions why expert payments within the 3ID claimancy take so long.

The military judge also questioned why experts for the defense continue to have difficulties obtaining payments for work done on Bozicevich’s behalf as attorneys prepare for a February 2011 capital court-martial trial.

The humor is that this is neither a new problem nor a problem limited to the 3ID, or the Army for that matter.