Court-Martial Trial Practice Blog

Of interest to civilian counsel

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

Courtesy of CAAFLog here is a link to a proposed amendment to Article 27, UCMJ.

If passed the bill will have retroactive effect.

SECTION 1. REIMBURSEMENT OF ATTORNEY FEES OF A MEMBER OF THE ARMED FORCES WHO RETAINS PRIVATE COUNSEL AND HAS CHARGES BROUGHT UNDER THE UNIFORM CODE OF MILITARY JUSTICE DISMISSED OR WITHDRAWN OR IS ACQUITTED.

(a) Reimbursement Required Under Certain Circumstances- Section 827 of title 10, United States Code (article 27 of the Uniform Code of Military Justice), is amended by adding at the end the following new subsection:

`(d)(1) Nothing in this section (article) prohibits an accused from retaining private counsel to serve as defense counsel before a general court-martial or special court-martial.

`(2)(A) If the accused retains private counsel to represent the accused in a case described in subparagraph (B) and all of the charges against the accused are dismissed or withdrawn or the accused is acquitted on all charges (or some combination of dismissed or withdrawn charges and acquittal), the Secretary concerned shall reimburse the accused for all attorney fees incurred by the accused in the case.

`(B) Subparagraph (A) applies with respect to a case against a person subject to this chapter who is accused of any offense in violation of this chapter under circumstances involving the treatment of an insurgent, enemy combatant, detainee, or a suspected or known terrorist.

`(C) The Secretary concerned shall provide reimbursement required under this paragraph using funds otherwise available to the Secretary to carry out this chapter.’.

(b) Retroactive Application of Amendment- Paragraph (2) of subsection (d) of section 827 of title 10, United States Code (article 27 of the Uniform Code of Military Justice), as added by subsection (a), applies with respect to any charges brought under the Uniform Code of Military Justice after September 11, 2001, that involve the circumstances described in subparagraph (B) of such paragraph.

Up periscope

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

The Post & Courier reports that:

An active-duty Air Force airman accused in the death of a local American living in Germany has been acquitted in the case.

Chris Matyszyk, 36, died Jan. 12, nearly two weeks after suffering a fatal punch to the face outside a pub in the German town of Landstuhl, near Ramstein.

[Breaking]More on the West Point rape case

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

recordonline.com reports that:

United States Military Academy cadet has been convicted of rape in military court.
The judge in the court-martial has found Cadet Kyle C. Newman guilty on one charge of rape and one count of indecent conduct.
Newman was facing court-martial on two counts of rape and one count of indecent conduct. He had pleaded not guilty on those counts. On Tuesday, he pleaded guilty to three violations of a lawful general order of the Uniform Code of Military Justice, admitting to leaving post and fraternizing with a freshman cadet.

recordonline.com reports that:

Another LTC Lakin commentator

May 26, 2010 | The Law Office of Philip D. Cave

Andy Martin, Executive Director, Contrarian Commentary, posits that President Obama is not legally president, therefore LTC Lakin has a legitimate challenge to his orders.

Mr. Martin first tells us that:

I am completely independent and impartial in so far as the Lakin matter is concerned. So far as I am aware I have not had any contact with anyone involved in Lakin’s specific case. I am the author of the Obama book “Obama: The Man Behind The Mask” which first raised questions about Obama’s citizenship.

Up periscope

May 26, 2010 | The Law Office of Philip D. Cave

Military.com reports that:

A Navy doctor pleaded guilty to two counts of wrongful sexual contact and two counts of conduct unbecoming an officer, in exchange for dropping 29 other counts of criminal allegations at a Yokosuka Naval Base court-martial Wednesday.

Grant Okubo/Stars & Stripes
Under the terms of a pretrial plea agreement, Lt. Cmdr. Anthony L. Velasquez, 48, will not serve more than seven days of confinement at the Yokosuka Naval Base brig.

Military judge Cmdr. David Berger sentenced Velasquez to two years in prison, a $28,000 fine and forfeiture of all pay and allowances, but the convening authority suspended the punishment in accordance with a pre-trial agreement.

Stars & Stripes also has a piece.

Dayton Daily News reports:

The Air Force began hearing evidence Wednesday, May 26, to determine whether the Air Force Materiel Command’s former top enlisted man should be court-martialed for alleged sexual harassment of subordinates, adultery and other offenses under military law.

Air Force/AF Times Gurney faces allegations including extramarital relationships and that he sent semi-nude images of himself to Air Force women, requested pictures of their breasts, and touched their breasts and buttocks.

The charges against him also include indecent exposure; dereliction of duty; having unprofessional relationships with female Air Force subordinates; misuse of his Defense Department computer; failure to obey an order, and attempting to influence the Air Force to assign airmen to jobs where he could have access to the women.

In accordance with R.C.M. 405(j)(2), Discussion:

On Wednesday, the government’s lawyers asked O’Sullivan to consider additional charges that he had sexually assaulted one airman and may have obstructed justice by telling two women he had sex with that they shouldn’t tell anyone about it.

Military.com reports that:

A U.S. Soldier who blew the whistle on his comrades over possible drug use and the deaths of three civilians in southern Afghanistan suffered a severe beating in retaliation, officials said Tuesday.

The Soldier was beaten after telling authorities about illicit drugs and then, while recovering in hospital, recounted his comrades’ alleged role in the deaths of three Afghan civilians, said two officials, who spoke on condition of anonymity.

Military.com reports that:

Both the Montgomery and Post 9/11 GI Bills are worth over $49,000. This money is not a loan and will help you cover the costs of getting a degree. Full-time students receive up to $1,368 a month no matter how much tuition costs. The Post 9/11 GI Bill may even give you a monthly housing stipend of $1,200.

Reading

May 26, 2010 | The Law Office of Philip D. Cave

Have a few spare minutes:

1. Disentangling Child Pornography from Child Sex Abuse

Carissa Byrne Hessick , Arizona State, Sandra Day O’Connor College of Law, Washington University Law Review, Vol. 88, 2010

CAAF grant and remand – de facto immunity

May 26, 2010 | The Law Office of Philip D. Cave

Here’s an interesting grant and remand from CAAF.

No. 10-0265/AF. U.S. v. Douglas E. LONG. CCA 37044 (2009 CCA LEXIS 477).

WHETHER APPELLANT WAS DENIED DUE PROCESS BECAUSE ASSURANCES OF AIR FORCE OFFICIALS PROVIDED HIM WITH DE FACTO IMMUNITY FROM PROSECUTION.

Pendergrass

May 26, 2010 | The Law Office of Philip D. Cave

CAAFLog advises that Pendergrass v. Indiana, No. 09-866, is scheduled for the 10 June case conference at the Supremes. Here courtesy of Prof. Freidman counsel for Pendergrass and also of Melendez-Diaz and Briscoe “fame,” is the Pendergrass cert petition. Here also is the state of Indiana’s brief in opposition to certiorari at this link.

The issue will potentially impact United States v. Blazier , 68 M.J. 544 (A. F. Ct. Crim. App. 2008) (yes, that’s the correct volume according to LEXIS), concerning whether surrogate expert testimony complies with Melendez-Diaz. C.A.A.F. partially decided some issues, but:

[W]e order briefing from the parties, and invite briefing from the government and defense
appellate divisions from the other services, on the following:

Up periscope 34

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

Navy Time reports:

Thirteen junior officers were kicked out of the Marine Corps last week after officials uncovered widespread cheating on a land navigation exam.

All 13 were students at The Basic School aboard Marine Corps Base Quantico, Va., a six-month boot camp for newly commissioned officers. Eight men — including two former football players from the Naval Academy — and five women were administratively discharged May 20 for allegedly using cheat sheets last fall to help them locate boxes stashed in the woods aboard the base, Marine officials said. Two of the 13 officers were prior enlisted Marines.

Stolen Valor

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

Marine Corps Times reports:

A man who pleaded guilty last year to altering an identification card after he was spotted in the uniform of a three-star Marine general has been charged again with posing as a highly decorated Marine officer.

Sixty-seven-year-old Michael Hamilton of Richlands was charged last week with wearing a Marine colonel’s uniform and three counts of wearing medals, including two Navy Crosses, the second highest award for valor.