Court-Martial Trial Practice Blog
Army Times reports:
A Fort Wainwright soldier is under investigation for allegedly posting a video on his Facebook site showing Iraqi children being taunted.
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Hasan update
The LA Times has interesting piece which essentially posits that both the defense and Congress are being stonewalled in production of relevant information. Usually it’s only the defense.
But even before the gavel comes down, two legal battles are underway to try to force the Army and the Department of Justice to turn over documents dealing with Hasan’s past, particularly his personnel files, his mental health records and other documents that might suggest the government should have known he was a dangerously troubled soldier.
The Senate Homeland Security and Governmental Affairs Committee has taken the unusual step of issuing subpoenas demanding the records as part of its investigation into the shooting spree. What they want to know, said committee Chairman Joe Lieberman (I-Conn.), is "why was he not stopped before he took 13 American lives, and how can we prevent such a tragedy from happening again?"
New ACCA reminder on sentencing
In United States v. Eslinger, __ M.J. ___ (A. Ct. Crim. App. 14 May 2010), the court has set out a useful reminder in two areas: a military judge’s duty to instruct on all issues and the potential problem of defense waiver of instructions, and how to handle testimony that an accused does or doesn’t have rehabilitative potential.
1. Instructions.
A military judge has a sua sponte duty to give certain instructions when reasonably raised by the evidence, even in the absence of a request by the parties. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (citing R.C.M. 920(e)). Mistake of fact is a special defense that a military judge must instruct court members on sua sponte if reasonably raised by evidence. R.C.M. 916(j); R.C.M. 920(e)(3). Waiver does not apply based on the mere failure to request the affirmative defense instruction or to object to its omission. United States v. Taylor, 26 M.J. 127, 128-29 (C.M.A. 1988). However, the defense can make a knowing waiver of a reasonably raised affirmative defense. United States v. Guitterez, 64 M.J. 374, 376 (C.A.A.F. 2007) (citing United States v. Barnes, 39 M.J. 230, 233 (C.M.A. 1994)). For a waiver to be effective, it must be clearly established that appellant intentionally relinquished a known right. See United States v. Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008) (citations and quotations omitted).
CAAF grants
Here are some CAAF grants/issues that should resonate in the field.
No. 10-0332/AF. U.S. v. Yolanda FLORES. CCA S31621. Review granted on the following issue:
WHETHER TRIAL COUNSEL IMPROPERLY COMMENTED ON APPELLANT’S CONSTITUTIONAL RIGHT TO REMAIN SILENT THUS DEPRIVING APPELLANT OF A FAIR TRIAL.
Doctor-Patient privilege
Federal Evidence Review notes the following:
In conspiracy to distribute controlled substances prosecution, physician-defendant could not assert that the medical records of his patients were subject to a doctor-patient privilege because the federal courts do not recognize this privilege under FRE 501, in United States v. Bek, 493 F.3d 790 (7th Cir. July 6, 2007) (No. 05-4198)
It is easy to overlook that the a physician-patient confidential communications privilege is not recognized in the trial of federal question matters. As adopted by Congress, the Federal Rules of Evidence fail to explicitly allow for this privilege.
An interesting Indiana case on 410
Somewhat similar to its federal counterpart, Indiana Rule of Evidence 410 provides in relevant part that
Evidence of a plea of guilty or admission of the charge which was later withdrawn, or a plea of nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case or proceeding against the person who made the plea or offer.
Failure to report
In United States v. Serianne, the CAAF affirmed an NMCCA decision that a Navy order to report civilian DWI/DUI convictions was unlawful and not enforceable at court-martial.
Navy Times reports:
The Navy’s self-reporting requirement for drunken driving arrests will fundamentally change as a result of a recent military court ruling, the Navy’s top lawyer said.
NMCCA on Quintanilla
NMCCA denied Quintanilla’s petition
in which he sought to have the court overturn the ruling of the military judge at his sentencing rehearing to the effect that Life Without Parole (LWOP) is not an authorized
sentence in his case. Alternatively, the petitioner requested that this court direct the military judge to grant the petitioner’s motion allowing him to waive his right to clemency and parole following sentence, so that he can more easily reach a pretrial agreement with the convening authority.
Proverbs 18-17
The King James (UK) version of Proverbs 18-17 says: He that is first in his own cause seemeth just; but his neighbour cometh and searcheth him.
The King James (Am.) version says: He that is first in his own cause seems just; but his neighbor comes and searches him.
The New Living Testament (2007) says: The first to speak in court sounds right–until the cross-examination begins.
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The Guardian, at guardian.co.uk reports that:
An Afghan prosecutor has issued an arrest warrant for an American special forces commander over allegations that a police chief was murdered by a US-trained militia.
He accused American officials of refusing to hand over evidence or to permit his investigators to interview the special forces commander, known to Afghans only as "John or Johnny", who he alleges sanctioned the raid.