Court-Martial Trial Practice Blog

Up periscope – WE070310

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

Stars & Stripes reports.

The Army recently asked 45 of its soldiers in the highest enlisted rank to retire for substandard performance, past criminal convictions, problems with alcohol, fraternization or sexual harassment in their recent pasts.

Of the 45 sergeants major whose records were flagged under the newly reinstituted Qualitative Management Program, 28 complied, putting in their retirement paperwork and quietly fading away.

But 15 fought it, arguing that they were valuable Army assets despite any previous incidents. A panel of their peers usually agreed: 12 of the 15 were allowed to remain on active duty. The remaining three were forced to retire, however.

Pretrial confinement post-conviction

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

Here’s the scenario:

Client is convicted at court-martial. Sentencing is to take place the next day, or a Monday after a Friday conviction. Based on the charges and the evidence there’s a reasonable likelihood the client will get some confinement. The command wants to put the client in pretrial confinement pending sentencing. Can they?

1. If the client was already confined, the confinement can be continued.

Denial of counsel of choice

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

There are a number of ways denial of counsel of choice can come up, most frequently related to the availability of civilian counsel. Here’s an interesting one.

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). The opinion is written by Justice Scalia. Here are the important part of the opinion:

In sum, the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation "complete."

Upgrade

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

I was over that the Navy Discharge Review Board the other day. Their workload has increased significantly with the bad economy. They were up from 1400 to 2700 petitioners in 2009 over the prior year. It’s the economy, and it’s stupid to waive an administrative separation board if you are being processed for an OTH, unless of course it is a conditional waiver for a general discharge.

A frequent paragraph in DRB denials goes something along these lines:

‘The Board finds that you waived your right to appear before an administrative discharge board. This waiver of your rights at the time is viewed as a matter in aggravation against you in deciding your request for an upgrade.’

Several new CAAF opinions

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

United States v. Cowgill.

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN
DENYING THE DEFENSE MOTION TO SUPPRESS ALL EVIDENCE
FROM APPELLANT’S HOME.

The two underlying point were: potential erroneous information given for a search warrant (statements were factually incorrect, but believed to be true by the detective at the time), and if there was erroneous information, was there enough probable cause without the erroneous information.

Crawford issue

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

On habeas review of state court convictions, the detective’s trial testimony about the statements of two non-testifying co-actors which implicated the defendant in the shooting and which were used to confront the defendant during his interview violated the Confrontation Clause and constituted plain error, in Ray v. Boatwright, _ F.3d _ (No. 08-2825).

Since Crawford v. Washington, 541 U.S. 36 (2004), testimonial statements are inadmissible under the Confrontation Clause unless the declarant testifies subject to cross examination. There are not many cases in which a Confrontation Clause challenge raised for the first time on appeal may result in plain error. The Seventh Circuit recently identified one case which did.

NMCCA decision setting aside

March 3, 2010 | The Law Office of Philip D. Cave

United States v. Sezginalp:

There is an interesting appellate procedural history. The court intially denied various efforts to have a post-trial R.C.M. 706 evaluation. But, the court did sua sponte reconsider the denial and did order a new R.C.M. 706 examination.

On 6 January 2010, the ordered R.C.M. 706 evaluation report was released. The evaluation found that during all relevant time periods, the appellant suffered from Schizophrenia (paranoid type), a severe mental disease, but that at the time of his offenses, the appellant was able to appreciate the nature and quality of his actions. The report, however, concluded that at the time of his trial, the appellant’s mental disease rendered him unable to understand the nature of the proceedings against him or to cooperate intelligently in his defense.

Up periscope 20

March 2, 2010 | The Law Office of Philip D. Cave

The Miami Herald reports that:

A South Carolina congressman said Friday that five Muslim soldiers at Fort Jackson, S.C., had been removed from active duty, and four of them discharged from the Army, in connection with an ongoing probe into alleged threats to poison food at the large South Carolina base.

Up periscope 19

March 2, 2010 | The Law Office of Philip D. Cave

WRAL.com reports that members selection has begun in the Hennis court-martial.

x reports that the military judge has declined to delay trial pending the outcome of Hennis’s District Court jurisdictional case.

Navy Times reports:

Major Hasan update

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

The Temple Daily Telegraph reports that:

Defense attorney John Galligan said Friday that accused Fort Hood shooter Maj. Nidal Hasan could be back in Bell County as early as Monday.

Hasan was notified Thursday that the therapy he was receiving at Brooke Army Medical Center in San Antonio was officially finished. He has been under guard at the hospital since Nov. 7 when he was flown there by helicopter from Scott & White Memorial Hospital in Temple.