Court-Martial Trial Practice Blog

Stolen Valor update

February 7, 2010 | The Law Office of Philip D. Cave

I noted earlier that some accused of violating the Stolen Valor Act are challenging it’s constitutionality in situations where the person was a braggart, but did not gain or attempt to gain through the fraud. Here is a new case of someone who likely did gain – a city job?

M. McBride

Contributed photo

in Houston Chronicle

A Houston man was charged on Friday with allegedly impersonating a U.S. Army general by wearing a uniform decorated with more military honors than earned by famed Gen. George Patton.

The FBI charged 44-year-old Michael P. McManus with five federal misdemeanors, accusing him of unlawfully wearing an unauthorized uniform embellished with some of the U.S. military’s most distinguished combat medals.

He is one of about 50 people charged under the 2006 Stolen Valor Act, which makes it a federal crime to falsely claim to have received a medal from the military, regardless of whether the accused does not try to profit from the deception.

One man bilked a Veterans Affairs program out of huge sums of money, while a woman received some $40,000 in tuition after telling employees at her university that she was an Air Force pilot flying in Iraq on weekends.

The Houston Chronicle reports.

According to the Department of Justice, McManus did actually serve in the Army between the years of 1984 and 1987. However, he never achieved a rank higher than private first class, nor did earn the Military Combat Awards and insignia he is accused of wearing.

As we first pointed out Friday night, those medals include two Distinguished Service crosses, a Purple Heart and a medal around his neck indicating he was the commander of the British Empire.

ABC reports.

Up periscope – WE 070210

February 7, 2010 | The Law Office of Philip D. Cave

Not going too far, how about you?

Meanwhile – – –

A Robins Air Force Base master sergeant was dishonorably discharged and sentenced to 50 years in prison after he was found guilty of engaging in sexual contact with several minors, according to The Robins Rev-Up, the Robins Air Force Base installation newspaper.

USMC CM tracking

February 6, 2010 | The Law Office of Philip D. Cave

Here is a link to MARADMIN 062/10, Implementation of Case Management System for Courts-Martial.

Spice prohibited, alcohol still good to go

February 6, 2010 | The Law Office of Philip D. Cave

A new order from Marine Corps Forces Command explicitly prohibits Marines from using a number of legal substances, including the herbal blend Spice, to achieve an altered state of consciousness or a druglike “high.” . . . The order, dated Jan. 27, bars Marines from using, possessing, attempting to possess, manufacturing or introducing onto military installations any of 10 substances that cause “legal highs.” Spice and salvia divinorum, including their many aliases, are at the top of the list.

JDNews.com reports.

According to MARFORPAC Order 5355.2, the substances known as Spice and Salvia Divinorum, while not listed as a controlled substance and highly accessible by service members, are hereby prohibited to all service members assigned within the MARFORPAC chain of command.

Quantico Brig suicide update

February 5, 2010 | The Law Office of Philip D. Cave

Capt. Michael A. Webb, 46, of Coto de Caza, Calif., was found unresponsive Sunday at 7:21 a.m. and was later pronounced dead at the scene, said Lt. Col. Roger Galbriath.

Webb had been placed under pretrial restraint as a result of the serious nature of his misconduct, because he failed to report to Quantico Marine Corps base when ordered, and because he was determined by an independent reviewing officer to be a flight risk.

InsideNoVA.com reports.

Case tools

February 5, 2010 | The Law Office of Philip D. Cave

Here’s a link to the DOJ list of principal FOIA contacts at federal agencies. I’ve added this as a link to my list of important sites.

Here’s a link to Mark Bennett, 16 Simple Rules for Better Jury Selection, 22(1) The Jury Expert, Jan. 2010. The highly entertaining Bennett has some interesting rules: The Shrek Rule, the Blind Date Rule, and the Beer Pong Rule. Behind the entertaining naming there is value in what he says, it’s just better than a boring ol’ textbook.

PTSD and sentencing

February 5, 2010 | The Law Office of Philip D. Cave

I have posted about this issue here, here, and here.

As noted previously on this blog, there have been some notable recent examples of judges reducing a sentence based on the hardships a defendant previously suffered as a result of military service. Now, as detailed in this local article from Kansas, this concept is getting some legislative attention:

Judges would be able to reduce sentences for defendants who are combat veterans and have post-traumatic stress disorder, under a bill being considered by the Kansas Legislature.

CAAF and Abu Ghraib

February 4, 2010 | The Law Office of Philip D. Cave

CAAF has decided two cases related to Abu Ghraib: United States v. Harman, and United States v. Smith.

The issue in Harman was factual sufficiency and the conviction and sentence was affirmed.

Appellant admitted to investigators that she took a new detainee, who had been placed on a box with a hood over his head, affixed his fingers with wires, and told him he would be electrocuted if he fell off the box. Appellant then photographed the victim who stood on the box for approximately an hour. Appellant admitted it was her idea to attach these wires, though military intelligence officials had not asked her or her colleagues to do so. Appellant thought this was permissible because “[w]e were not hurting him. It was not anything that bad.”

917 on steroids

February 4, 2010 | The Law Office of Philip D. Cave

In 1988 the Court of Military Appeals decided Griffith. I have used the case from time to time, not often successfully. But here is a recent example of what I call 917-on-steroids. I was pleasantly surprised that it was the judge who first raised the Griffith possibility.

R.C.M. 917 allows the defense to make a motion (or the MJ sua sponte) for a finding of not guilty at the close of the prosecution case or at the close of the evidence. I have just completed one of the infamous Army TCS/Reserve TDY cases. The E-8 accused was charged with conspiracy with two others to steal using fraudulent rent receipts, false official statement, theft of funds in excess of $500.00, and two specifications of fraud under Article 132, UCMJ. The standard or amount of evidence is so low that it is hard to obtain an R.C.M. 917 dismissal.

At the close of the prosecution case they had not introduced evidence of a delta between the amount alleged to have been stolen and that to what the accused would have been entitled, and had not introduced evidence that the travel claim vouchers were actually signed and submitted by the accused. Rather than grant a 917 motion, the judge allowed the prosecution time to rethink their case and potentially request they be allowed to reopen. After the interlude the judge kicked the can and referenced Griffith, again giving the prosecution more opportunity to reopen. The military judge is permitted to take such a course of action. See e.g. United States v. Ray, 26 M.J. 468 (C.M.A. 1988).

Up periscope – WE300110

February 4, 2010 | The Law Office of Philip D. Cave

The Army has charged an Illinois National Guardsman in Afghanistan with possession of child and adult pornography, and his family has come to his defense, arguing that he was the target of a personal vendetta.

Army Times reports. This is an ongoing case that started because the kids mother sent him a photograph of a child. In the photograph you can apparently see her crack.

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