Court-Martial Trial Practice Blog

Major Hasan ripples

February 11, 2010 | The Law Office of Philip D. Cave

The military will formally discipline at least six officers, mostly from Walter Reed Army Medical Center in Washington, for failing to take action against the officer accused of carrying out last year’s deadly shooting rampage at Fort Hood, according to people familiar with the matter.

In announcing the findings, Defense Secretary Robert Gates said he had directed Army Secretary John McHugh to take "appropriate action" against Maj. Hasan’s past supervisors. Mr. McHugh, in turn, appointed Gen. Ham to investigate whether specific officers should be punished for failing to raise the alarm about Maj. Hasan.

Wall Street Journal reports.

Mother accepts discharge in lieu of trial

February 11, 2010 | The Law Office of Philip D. Cave

An Army specialist who refused deployment to Afghanistan because no one was available to care for her infant son in her absence has agreed to leave the military instead of facing a court-martial, service officials said.

As part of the agreement 21-year-old Spc. Alexis Hutchinson will be stripped of her rank and become ineligible for future military or veterans benefits, according to a release from Army Forces Command.

[T]he Army Forces Command disputed [her] version of events.

Pantano for Congress

February 11, 2010 | The Law Office of Philip D. Cave

Three Republicans are vying for the nomination to run for the seat and all three are military vets — but only one has the kind of star power that comes with a personal story that extends from Hell’s Kitchen in Manhattan to the fast-money world of Wall Street, and includes film-making, a best-selling book, an appearance on "The Daily Show" and charges of murdering two Iraqi civilians.

But before the GOP gets too excited about seeing former Marine 1st Lt. Ilario Pantano take a seat in Congress, it had better face up to the fact that the former infantry officer isn’t your typical Red stater. . . .

April 2004 found him leading a platoon in Mahmudiya, Iraq, where he had in custody two Iraqis he suspected were involved in anti-coalition activities. According to various accounts, Marines had already searched the men’s car and found no weapons. But when weapons were found in a nearby house, Pantano wanted the car stripped down for another search.

Collateral consequences

February 11, 2010 | The Law Office of Philip D. Cave

The 8th Circuit Court of Appeals considers a conviction of “housebreaking,” under Article 130, UCMJ, to be a crime of violence for firearms possession charges in federal district court. We frequently are asked by clients if they can still own a firearm. The answer is a very nuanced one, as Begay and Whetzell indicate.

Appellant’s prior crime, the crime of housebreaking, occurs when "[a]ny person subject to [the Uniform Code of Military Justice] . . . unlawfully enters the building or structure of another with intent to commit a criminal offense therein. . . ." 10 U.S.C. § 930. . . .

Appellant’s primary argument against this conclusion is that the district court improperly referenced the military court’s discussion of the underlying facts of his conviction. Generally, a court is only to consider "the fact of conviction and the statutory definition of the prior offense." Taylor, 495 U.S. at 602. But the district court’s reference in this case to the underlying facts of Appellant’s housebreaking conviction, as articulated in the military court’s opinion, does not change the fact that the elements of housebreaking constitute a generic burglary crime, a crime of violence under our precedents. Further, and contrary to Appellant’s argument, the Supreme Court’s opinion in Begay v. United States, 553 U.S. 137 (2008), did not alter our decisions in regard to generic burglary and does not provide reason for reversal.

Major Hasan update

February 11, 2010 | The Law Office of Philip D. Cave

The military will formally discipline at least six officers, most from Walter Reed Army Medical Center in Washington, for failing to take action against Fort Hood gunman Nidal Malik Hasan, according to people familiar with the matter.

Officials said the move reflects the military’s belief that the Nov. 5 assault could have been prevented if Hasan’s superiors had alerted authorities to his increasing Islamic radicalization.

Dallas News reports. Judge Pohl has been scheduled to start the Article 32, UCMJ, hearing on 1 March.

Crawford, Melendez-Diaz, Briscoe – and now Pendergrass v. Indiana

February 9, 2010 | The Law Office of Philip D. Cave

Here is a link to the full cert petition in Pendergrass v. Indiana. The question presented is:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009).

Breaking news on Breaker Morant

February 9, 2010 | The Law Office of Philip D. Cave

Remember those NJS days, and at other military justice seminars – scenes from Breaker Morant (the movie), and discussion.

A PETITION for the pardon of Harry ”Breaker” Morant and Peter Handcock, Australian soldiers executed by the British for the murder of prisoners in the dying days of the Boer War, has been forwarded to the Queen by the Attorney-General, Robert McClelland.

[T]he petition argues that the convictions of lieutenants Morant and Handcock, and that of Lieutenant George Witton, whose sentence was commuted, were unsafe; that their trial was unfair; that mistakes were made by the judge advocate; that the men’s right to petition for mercy to the king was ignored, and that the Australian government was deliberately kept ignorant of the trial until after the executions.

Major Hasan update

February 8, 2010 | The Law Office of Philip D. Cave

(No pun intended.)

The Army said Monday it has appointed an investigating officer for an Article 32 hearing, which will determine if there is sufficient evidence to proceed with a court-martial for Maj. Nidal Malik Hasan, who’s charged with 13 counts of premeditated murder in the deadly shooting rampage on Nov. 5 at Fort Hood’s Soldier Readiness Center.

KWTX.com reports.

Interview techniques

February 8, 2010 | The Law Office of Philip D. Cave

The Reid Technique is one of the more known and familiar interrogation and interview techniques used by law enforcement. We mostly become familiar with interrogation methods because of court-martial pretrial motions practice to suppress coerced or false confessions. The value of various police interrogation techniques is not limited to police interrogations. A trial counsel or a defense counsel preparing for a court-martial can benefit from knowing, understanding, and practicing some of the law enforcement interview and interrogation techniques. (NOTE, it is unethical for an attorney to lie during a witness interview, be careful, that is one technique that is not permitted. And it is unethical for a counsel to fail to identify themselves as a prosecutor or defense counsel when interviewing witnesses.)

Before I begin an interview, especially with a complaining witness in sexual assault case, I want to know about that person. At the first contact, and from then on, I constantly assess the person: their emotions, their physical and emotional responses, their word choice, their mannerisms. I’m doing that because I want to establish rapport. (You should of course do the same to the client.) I’ve said this many times, but I’ve frequently been the one to educate the prosecution witnesses on the process and what’s going on and why. That has benefitted me and my client numerous times. The “victim” appreciates you for telling them what’s going on. I cannot remember how many times a “victim” tells me that no one will tell them what’s going on. Defense counsel — this is your moment to establish rapport.

If you establish rapport with a witness you will get more information, the witness will respond better to you, and the witness may be less antagonistic to the client. I had not realized that at least one author calls this “isopraxis.” I know it as mirroring.

Stolen Valor update

February 8, 2010 | The Law Office of Philip D. Cave

Question, if he served at least three years in the Army, and he left active duty as a PFC, is it not likely that he was disciplined at some point and reduced in rank?

With the aid of Maggies Farm (Stolen Honor as a Pick-up Line?), Moonbattery, (Captain Chinpubes below was spotted at a grand Victory party for Moonbat Houston Mayor Annise Parker), and cdr salamander, here is a better shot and a breakdown of the awards claimed by

Well, lets review the "awards" at least. You can see a high-res here and a full-frontal here.
His decorations include;