Court-Martial Trial Practice Blog

Cold dead fish

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

When a judge decides a motion at court-martial they will present the facts they have found, discuss the law, and make their conclusion. On appeal, when the military judge makes proper findings of fact, the court will accept those facts for the purpose of review unless there is an abuse of discretion and the facts found are “clearly erroneous.”

C.A.A.F. seems to have this definition, among several, of what clearly erroneous means.

At least one court has defined the clearly-erroneous standard by stating that it must be "more than just maybe or probably wrong; it must … strike us as wrong with the force of a five-week-old, unrefrigerated dead fish." Parts and Electric Motors Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988).

Behenna update

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

CAAFLog has this case among the Top-10 for 2009.

Vicki Behenna has 10 minutes to plead her son’s case.

Where does she begin?

Major Hasan

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

Army Major Nidal Malik Hasan, the accused Fort Hood shooter and psychologist, has been moved out of Brooke Army Medical Center’s ICU and into its general care unit. Hasan was hospitalized the day of the Fort Hood shootings—November 5—with several serious gunshot wounds.

Reports tothecenter.com.

Military death penalty

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

The court-martial of Gen. William Hull — who gave up Detroit to the British without a fight during the War of 1812 — began Jan. 3, 1814.

Deemed a coward, Hull was found guilty of dereliction of duty and sentenced to death, but President James Madison later reduced it because of the officer’s impressive Revolutionary War record of service. Historians later concluded that Hull’s actions in August 1812 were correct.

The Detroit Free Press reports.

I object – some reminders

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

Prof. Collin Miller has this item on his blog which is an excellent reminder about objections – an issue for the defense much more than prosecution.

You’ve seen it a million times in legal movies and TV shows. A lawyer asks a witness a question, opposing counsel stands up and exclaims, "Objection, your Honor," and the judge overrules (or sustains) the objection. Like many other aspects of legal movies and TV shows, this is not the way that things are usually done in courtrooms across the country. If an attorney merely stood up and said, "Objection," in response to a question without stating the grounds for that objection, that attorney would not have preserved the issue for appellate review. Indeed, as the recent opinion of the Supreme Court of Rhode Island in State v. Reyes, 2009 WL 4730822 (R.I. 2009), makes clear, even if an attorney does state a ground for his objection, but it is the wrong ground, he has not preserved the issue for appellate review.

Mil. R. Evid. 103(a)(1) requires that when making a motion counsel at court-martial, “[state] the specific ground of objection, if the specific ground was not apparent from the context[.]”

Shoplifting up

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

A pun too close to call. Article 15 and court-martial could be on the horizon for more Marines.

Smile, you’re on security cameras.

Despite the field overhead of video surveillance at the exchanges aboard Camp Lejeune and Marine Corps Air Station New River, N.C., Marines are betting the odds they won’t get caught stealing.

Blackwater down – update

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

U.S. District Judge Ricardo Urbina said Justice Department prosecutors improperly built their case on sworn statements that had been given under a promise of immunity. Urbina said the government’s explanations were “contradictory, unbelievable and lacking in credibility.”

And all charges have been dismissed, reports Air Force Times.

In ruling one month before the defendants were to face trial in Washington, Judge Urbina dismissed the case not for its merits, but for the way the government had handled the prosecution, calling the government’s explanations for the improper use of statements “contradictory, unbelievable and lacking in credibility.”

Major Hasan and his restriction

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

Attorney John Galligan says Maj. Nidal Hasan has excessive restrictions — including a rule barring any visitors when his attorneys are in his hospital room.

Air Force Times reports.

This same rule operates at the pretrial confinement facility. The Brigs are pretty good about letting counsel in to visit for “legal visits.” But there are restrictions on mingling of family visits and “professional” visits.

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?