Court-Martial Trial Practice Blog

Blazier – er, I mean Pendergrass update

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

CAAFLog has posted a link to the denial of certiorari in Pendergrass v. Indiana. When the Supremes, or any appellate court, denies a petition this is what I usually think of. Probably need to update my trial notebook because there must be a more recent “quote?” Stern & Gressman must be past a 7th edition?

[D]enial of a petition for writ of certiorari . . . simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter "of sound judicial discretion." A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result.. . . Inasmuch, therefore, all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated. United States v. Carver, 260 U.S. 482 (1923). See also, Evans and Jordan v. Stephens, et. al., 544 U.S. 942, n.1 (2005)("Nothing is more basic to the functioning of this Court than an understanding that denial of certiorari is occasioned by a variety of reasons which precludes the implication that were the case here the merits would go against the petitioner"); and see, Stern & Gressman, Supreme Court Practice, 7th ed., para. 5.7.

So, what will CAAF do about Blazier?

Up periscope

June 13, 2010 | The Law Office of Philip D. Cave

Stars & Stripes reports that:

An Air Force major from Ramstein Air Base was given four months in jail and a reprimand for marijuana use, according to base officials. At a court-martial at Ramstein earlier this month, Maj. Timothy Reburn pleaded guilty to using marijuana last summer at or near the air base, according to information provided by Ramstein’s legal office.

And:

LTC Lakin – survey of some interesting diatribes

June 13, 2010 | The Law Office of Philip D. Cave

Here are several interesting “comments” on LTC Lakin’s case.

Mr. Harrington [infra] references and links to Cody Robert Judy;

candidate for U.S. Senate from Utah and former presidential candidate, [who] has filed an Amicus Curiae brief with the U.S. Army on behalf of Lt. Col. Lakin.

Yammine – and computer file names

June 12, 2010 | The Law Office of Philip D. Cave

United States v. Yammine.

Here is the granted issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED EVIDENCE OF FILE NAMES FOUND ON APPELLANT’S COMPUTER THAT WERE SUGGESTIVE OF HAVING CONTAINED CHILD PORNOGRAPHY BUT WHOSE ACTUAL CONTENT WAS UNKNOWN, ALLOWING THE GOVERNMENT TO ARGUE APPELLANT’S PROPENSITY OR MOTIVE TO COMMIT SODOMY OR INDECENT ACTS WITH A MINOR.

The Ramrod five

June 12, 2010 | The Law Office of Philip D. Cave

AP reports that:

Five soldiers from the same Washington state-based unit have now been implicated in the killing of three Afghan civilians, an Army spokeswoman said Monday.

The Army said Friday that Spc. Jeremy Morlock had been charged with three counts of premeditated murder and one count of assault.

LTC Lakin today

June 12, 2010 | The Law Office of Philip D. Cave

Officer to Army: See you in court, is the title of a posting to World Net Daily. The piece also links to the new video release. I did not see a new confession, merely a continuance of his supposed reasons for his contumacy.

He cited a long list of "reasonable arguments" raising questions about whether Obama was born on American soil.

Assuming arguendo that there are reasonable questions about President Obama’s citizenship, the questions remain irrelevant to LTC Lakin’s court-martial.

Advice to the client – SOR – collateral effects

June 12, 2010 | The Law Office of Philip D. Cave

The AFCCA has issued its opinion in the relook at United States v. Rose. The court comes to the same conclusion that the defense counsel advice to the client about sex offender registration was wrong and IAC. The initial decision at AFCCA is here, and CAAF’s 28 October 2009 journal entry and order is here.

The statements of the appellant’s civilian defense counsel clearly attempt to minimize the seriousness of the indecent assault charges and assure the appellant that he would not have to register as a sex offender. In his testimony at the DuBay hearing, Mr. NC, the appellant’s civilian defense counsel, repeatedly used such phrases as “fairly innocuous” and “just foolery” to describe the sexual assault offenses. Mr. NC claimed lack of memory on many points but, in response to questions from the military judge, did recall concluding that sex offender registration was “not really a credible concern.” Consistent with this testimony, the appellant testified that when he directly asked Mr. NC if sex offender registration would be required Mr. NC told him: “I don’t see why it would be with the allegations that were brought against you. I don’t see why that would be a registerable offense.”

Bottom line it appears AFCCA believes the defense counsel considered the statements as “affirmative misrepresentations . . . concerning significant collateral consequences.” Slip op. at 5. Rose was tried in 2005.

Wife wears the eagles

June 12, 2010 | The Law Office of Philip D. Cave

Uh, why is this news, as reported by Military.com? Or, when has this not been a problem?

The commander of Fort Bragg has barred the wife of an 82nd Airborne Division colonel from nearly all interaction with her husband’s brigade and the unit’s families after an investigation found her influence "detrimental to the morale and well-being of both."

Um, the colonel’s wife who treats the O-6 parking spots as hers?

Courts-martial numbers down

June 12, 2010 | The Law Office of Philip D. Cave

CAAFLog blogged a while back about the declining numbers in Courts-Martials held. Navy Times reports this as a possible explanation for lower Navy numbers:

The overall number of sailors facing courts-martial has dropped dramatically during the past several years, Navy records show.

General courts-martial for the most serious offenses have fallen by nearly half, from 172 in 2005 to 94 last year. Court cases for lesser crimes have fallen by even more, according to data provided by the Navy’s judge advocate general.

Up periscope

June 12, 2010 | The Law Office of Philip D. Cave

Navy Times reports that:

Two Navy chiefs will be forced to retire after helping an enlisted sailor cheat on an advancement exam, officials from the aircraft carrier George Washington told Stars and Stripes on Thursday.

OregonLive.com reports that: