Court-Martial Trial Practice Blog

Text MG Cleveland’s letter to Rep. Burton

December 31, 2009 | The Law Office of Philip D. Cave

Dear Representative Burton,

Thank you for your letter expressing your and your colleagues concern regarding the pending Courts-martial of Petty Officers Huertas, McCabe, and Keefe. I understand your interest in these cases and can assure you that I am committed to protecting the rights of the Sailors who have been accused.

Regrettably it appears that your perception of the incident is based upon incomplete and factually inaccurate press coverage. Despite what has been reported, these allegations are not founded solely on the word of the detainee, but rather, were initially raised by other U.S. service members. Additionally, the alleged injuries did not occur during actions on the objective, as is also being widely reported in the media. A medical examination conducted at the time the detainee was turned over to U.S. forces determined that his alleged injuries were inflicted several hours after the operation had ended, and while in the custody and care of the U.S. at Camp Schweidler’s detainee holding facility.

Missed appellate deadlines?

December 31, 2009 | The Law Office of Philip D. Cave

Here is the QP in Holland v. Florida

Whether “gross negligence” by collateral counsel, which directly results in the late filing of a petition for a writ of habeas corpus, can qualify as an exceptional circumstance warranting equitable tolling, or whether, in conflict with other circuits, the Eleventh Circuit was proper in determining that factors beyond “gross negligence” must be established before an extraordinary circumstance can be found that would warrant equitable tolling?

Flipper

December 31, 2009 | The Law Office of Philip D. Cave

The Fall of a Black Army Officer: Racism & the Myth of Henry O. Flipper, by Charles M. Robinson III, Norman, Ok: University of Oklahoma Press, 2008.

In his 1994 book The Court-Martial of Lieutenant Henry Flipper, Robinson, an historian of the frontier army, held to the view that Flipper?s 1881 conviction for embezzlement was rooted in racism.

Reviewing materials not available at the time he did the earlier book, in the present work Robinson concludes that, while not denying the existence of racism in the army, Flipper had indeed been careless with funds, albeit probably intentionally. Such financial misconduct apparently was not uncommon in the Old Army, as very young officers were often given responsibility for large sums with little or not training. A number of other officers in the period were also found short in their accounts. The penalties handed out to most of these officers, however, were not usually immediate expulsion from the service, which is where the Flipper case differs from theirs.

Special sentencing for vets

December 31, 2009 | The Law Office of Philip D. Cave

Should military veterans get a break when they are sentenced for crimes?

Asks a piece in the Wall Street Journal. This is interesting in light of some discussion on CAAFLog about sentencing in court-martial and sentence ranges under the UCMJ. Seems some civilian judges are more interested in giving a sentence based on the whole person and individualized rather than a set amount.

“We dump all kinds of money to get soldiers over there and train them to kill, but we don’t do anything to reintegrate them into our society,” says John L. Kane, a federal judge in Denver.

A well armed militia

December 31, 2009 | The Law Office of Philip D. Cave

A former commander in the Tennessee State Guard has lost an appeal to overturn his conviction for trying to provide his soldiers with homemade machine guns for possible use in defending the state.

At trial and in his appeal, Mr. Hamblen argued that he and his soldiers had a Second Amendment right as members of the state militia to possess military-grade weapons.

He said Tennessee’s state guard arsenal included only 21 M-16 rifles for 3,500 volunteer soldiers.

Saving the SEALS

December 31, 2009 | The Law Office of Philip D. Cave

Army Maj. Gen. Charles Cleveland has responded to a letter that challenges the handling of a case against three Navy SEALs accused of mishandling a suspected terrorist.
In the Dec. 15 letter, addressed to Rep. Dan Burton, R-Ind., Cleveland essentially refuses to drop the charges against the three men.

"While the assault and resulting injury to the detainee were relatively minor, the more disconcerting allegations are those related to the sailor’s attempts to cover-up the incident," said Cleveland, who writes that this appears to be an attempt to influence the testimony of a witness.

Cleveland writes that the "alleged allegations are not founded solely on the word of the detainee, but rather, were initially raised by other U.S. service members."

Stolen valor report

December 31, 2009 | The Law Office of Philip D. Cave

David Vincent Weber arrived last month at a Ramona Veterans of Foreign Wars event in style: two stars on his shoulder and two Purple Heart medals pinned on the front of a Marine Corps uniform.

Weber, 69, appeared in a federal courtroom in downtown San Diego yesterday with considerably less pomp. He faces a charge under the 2005 Stolen Valor Act of wearing military medals he didn’t earn while passing himself off as a Marine major general at VFW Post 3783’s birthday celebration for the Corps.

SignOn San Diego reports.

Discovery

December 31, 2009 | The Law Office of Philip D. Cave

Discovery obligations apply to court-martial motions practice, for example when there is to be a suppression hearing.

The government has a mandatory duty to disclose evidence in its possession that is favorable to the defense, "either because it was exculpatory or of impeachment value . . . ." . The government breaches the duty established by Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, including Giglio v. United States, 405 U.S. 150 (1972), when it withholds such evidence, either willfully or inadvertently, and the withheld evidence is found to be "material." Id. In the context of non-disclosed impeachment evidence, materiality is assessed in terms of whether the reliability of the witness in question may well be determinative of the outcome of the proceedings. See Pennsylvania v. Ritchie, 480 U.S. 39 (1987). That is, the evidence must be such that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Stated otherwise, "the relevant question is: ‘when viewed as a whole and in light of the substance of the prosecution’s case, did the government’s failure to provide . . . [the] Brady impeachment evidence to the defense . . . lead to an untrustworthy [result]. . . ." (some citations omitted).

United States v. Best, No._________, 2009 U.S. Dist. LEXIS 119802, at *19–20 (M.D. Pa. Dec. 23, 2009).

A case of stolen valor

December 30, 2009 | The Law Office of Philip D. Cave

A man accused of posing as a Marine major general at a Veterans of Foreign Wars party in Ramona to celebrate the birthday of the Marine Corps was arraigned Wednesday on a federal misdemeanor charge of making false claims about military decorations or medals.

San Diego News Network reports.

Up periscope

December 29, 2009 | The Law Office of Philip D. Cave

The family of Evan Vela, an imprisoned former soldier from Parker, is expressing gratitude for a Christmas donation to his wife and children.
The donation came about through efforts by a national organization to support soldiers accused of crimes related to the war on terrorism.

reports Standard Journal.