Court-Martial Trial Practice Blog

Limiting instructions

December 24, 2009 | The Law Office of Philip D. Cave

Here I’m talking about limiting instructions at court-martial, not alleged curative instructions.

A limiting instruction is appropriate where evidence is admissible for one or more purposes, but is also inadmissible for one or more purposes. Here is a reminder from federalevidence blog of how that works.

In multi-defendant cocaine conspiracy trial, FRE 105 was satisfied by trial judge’s limiting instruction prior to deliberations that the jury give “separate, personal consideration to the case of each individual defendant” and to “analyze what the evidence in the case shows with respect to that individual, leaving out of consideration entirely any evidence admitted solely against some other defendant”; although the instruction was provided immediately prior to deliberations rather than contemporaneous with the testimony, the instruction satisfied the obligation to instruct jury when evidence can be admitted against one party and not others, in United States v. Beasley, 495 F.3d 142 (4th Cir. July 25, 2007) (No. 04-4107)

NMCCA sets aside BCD for Article 13 credit

December 24, 2009 | The Law Office of Philip D. Cave

Article 13, UCMJ, prohibits pretrial punishment.

In United States v. Turner, NMCCA 200401570 (N-M.C. Ct. Crim. App. 22 December 2009), the court found pretrial punishment and set-aside the BCD. This may be somewhat pyrrhic because the sentence was adjudged in 2001. That means the appellant has been on unpaid appellate leave since 2001. In his claim for post-trial delay he does not assert that being on appellate leave without a DD214 was prejudicial.

When the ship returned from its brief underway period, the appellant was brought from the
pretrial confinement facility to appear before the Captain and crew at a public mast (“mast” is frequently understood to mean nonjudicial punishment proceedings, but it also includes award ceremonies and individual meetings held at a service member’s request). After the Captain informed the appellant and the crew that the charges were being referred for trial, the appellant returned to pretrial confinement.

Good call Mr. President

December 24, 2009 | The Law Office of Philip D. Cave

The White House will not weigh in on the case of the three Navy SEALs facing court martial for allegedly mistreating an Iraqi terror suspect believed to have been behind the slaying of four Americans in 2004.

CNSNews.com reports.

We already have too much litigation by media, and by Congress in courts-martials and other UCMJ actions. The politicizing of military justice doesn’t serve military justice.

Still open case

December 24, 2009 | The Law Office of Philip D. Cave

Nearly two years after prosecutors in Jacksonville decided not to charge anyone in the gunfight that killed a club owner outside his bar north of Springfield, the Navy has acquitted a sailor of murder in the case.

NewsJacksonville.com reports —

Navy prosecutors would only say they had believed the case should be pursued.

Major Hasan gossip

December 24, 2009 | The Law Office of Philip D. Cave

An Army psychiatrist accused of fatally shooting 13 at the Fort Hood, Texas, military base had asked for a Muslim cleric’s advice about killing U.S. troops, according to a new interview.

CNN.com reports.

Retired Army Col. John Galligan, Hasan’s civilian attorney, has said his client is considering pleading not guilty by reason of insanity [at his court-martial].

CGCCA case to watch

December 23, 2009 | The Law Office of Philip D. Cave

The CGCCA has issued a 2-1 opinion in United States v. Lucas, and it is likely a case to watch with CAAF.

The CGCCA has been the most vigilant of the services in protecting an accused’s post-trial rights, so the decision in this case seems odd. There is no evidence that any of the proper procedures were followed in this case except for allowing the defense counsel to review the ROT.

Also, there is no clemency materials submitted by either the defense counsel or accused. Did the defense counsel contact the appellant? Did the appellant have anything to submit?

UP

December 23, 2009 | The Law Office of Philip D. Cave

Some news stories:

"US: SOLDIERS FORCED TO GO AWOL FOR PTSD CARE." Inter Press Service English News Wire. 2009. HighBeam Research. (December 23, 2009). http://www.highbeam.com/doc/1P1-174196126.html

With a military health care system over-stretched by two ongoing wars in Afghanistan and
Iraq, more soldiers are deciding to go absent without leave (AWOL) in order to find treatment for post-traumatic stress disorder (PTSD).

Another Stolen Valor case

December 22, 2009 | The Law Office of Philip D. Cave

A man accused of posing as a highly decorated war veteran faces federal charges of falsely wearing heroic medals of honor. Angel Manuel Ocasio-Reyes, 48, was charged under the Stolen Valor Act.

This is the fourth time in 12 months someone has been prosecuted under the Stolen Valor Act, according to Amy Filjones, a spokeswoman with the U.S. Attorney’s Office.

Tampabay.com reports.

Third SEAL pleads NG

December 22, 2009 | The Law Office of Philip D. Cave

The third SEAL accused in the assault of an alleged al-Qaida terrorist pleaded not guilty Tuesday to charges of dereliction of duty and making a false official statement in a military court on Norfolk Naval Base.

Trial by court-martial is set for 6 April 2010, Navy Times reports. The other two SEAL’s alleged to be involved with violating the UCMJ have each plead not guilty and have trial dates set.

More pregnancy issues.

December 22, 2009 | The Law Office of Philip D. Cave

Here is the Order in question regarding getting pregnant while deployed to the AOR. So far as reported earlier there have not been any court-martials.

Bob McCarty has blogged the issue from what appears to be a non-lawyer perspective.