Court-Martial Trial Practice Blog

ACCA court-martial appeal decisions

December 7, 2009 | The Law Office of Philip D. Cave

United States v. Story. Here the issue is two-fold: what is the response when the members want to call a witness, and what is permissible on appeal to demonstrate prejudice. ACCA found error in the military judge denying the members an opportunity to call a witness. On appeal, ACCA found that documents submitted by appellate government and appellate defense could not be considered. This seems odd, because the defense is trying to show prejudice from the error and the government is trying to show lack of prejudice.

When the members returned, immediately after calling the court to order and accounting for the parties, the following colloquy ensued:

MJ: Members, the bailiff indicated that you had a question? Colonel Meyer is shaking her head.

Self-reporting – not

December 7, 2009 | The Law Office of Philip D. Cave

The Navy’s rule forcing sailors to “promptly” tell their commanding officers if they have been arrested for an off-base drunken-driving violation is unconstitutional, the Navy and Marine Corps’s highest military judges have ruled.

And so begins a Navy Times article on United States v. Serianne.

I have posted before about the new DoD regulation that requires persons E-6 and above to report all civilian convictions.

Major Hasan’s mental “health”

December 7, 2009 | The Law Office of Philip D. Cave

Here are a couple of interesting items exploring the mental health issues potentially involved with Major Nidal Malik Hasan’s shooting rampage at Fort Hood – conclusion, he’s sane.

Howard Bloom asks, What if Nidal Malik Hasan is Sane? Psychology Today blog.

Were they the insane acts of a man driven over the edge by the vicarious stress of war? By the strain of hearing horror stories from the traumatized veterans of battles in Iraq and Iran?

Military Tattoo

December 7, 2009 | The Law Office of Philip D. Cave

No, this isn’t an advert for the Edinburgh Military Tattoo, or any other. It’s a reminder that

Air Force officials reinforce tattoo, body alteration policy.

Air Force Instruction 36-2903, Dress and Personal Appearance, states "Excessive tattoos and brands will not be exposed or visible while in uniform." Excessive is defined as any tattoo/brands exceeding one-quarter of the exposed body part and those above the collarbone when wearing an open collar uniform. The AFI also outlines the current provisions and prohibitions to include standards governing piercings and body alterations.

No pay due

December 7, 2009 | The Law Office of Philip D. Cave

No pay due, not needed. Army Times reports that a captain stationed at Fort Lewis has plead guilty to stealing about $690,000.00 while in Iraq. No court-martial.

Patient confidentiality in the military

December 7, 2009 | The Law Office of Philip D. Cave

I have posted in connection with some comments about Major Hasan and his desire to have patients prosecuted at court-martial for war crimes and other offenses while deployed to Iraq.

Major Hasan’s war crimes trial requests, 17 November 2009.

The issue has gained new attention with the recent mass shootings at Fort Hood that killed 13 and wounded 43. In the weeks before the rampage, the accused gunman, Maj. Nidal M. Hassan, an Army psychiatrist, told colleagues and Army lawyers that he wanted to report soldiers who had admitted in counseling sessions that they witnessed or committed war crimes in Iraq or Afghanistan. War crimes can include acts like torture, murder, sexual assault and cruel treatment.

Anything and everything

December 6, 2009 | The Law Office of Philip D. Cave

A number of articles are circulating and the blogosphere is discussing the obligations of Major Hasan’s counsel to do anything and everything to avoid the death penalty as a sentence at his court-martial. Here is an interesting item, not that it’s going to be relevant to the Fort Hood case involving Major Hasan, but as an example of how closely IAC is looked at in a death penalty case.

Kiddie porn: Risky to ignore.

Karen Franklin first notes that:

It’s not what you think I said, it’s what I said

December 6, 2009 | The Law Office of Philip D. Cave

Whenever I talk about court-room lawyering I always emphasize that the person must first be themself and not try to become someone they aren’t. Once you decide who you are, your “style,” and how you will present, then you can take the other tools of advocacy and adapt them to your personality and form of presentation. Sure, you can be taught and learn about distracting mannerisms – the clicking pen, the walking back and forth, or about filler words, but you can’t change the essence of who you are when making a court-room presentation. My theory is to embrace your own self and then adapt the tools. So it was with interest I saw this item in the November issue of The Jury Expert.

Katherine James, Everything I Ever Needed To Know About Live Communication I Learned From Konstantin Stanislavski: Common Mistakes and Best Practices, 21(6) The Jury Expert, Nov. 2009.

The military has gone through its phase of employing actor/consultants to teach trial advocacy. I’m not completely a fan of the method, but I can see there are valuable teaching points. Here are some.

Update on Mandatory Supervised Release

December 6, 2009 | The Law Office of Philip D. Cave

Thanks to CAAFLog there is news about the military mandatory release program imposed on those convicted and sentenced at court-martial.

Judge Rogers of the 10th Circuit has found the program to be legal and constitutional, in Huschak v. Gray, 642 F. Supp. 2d 1268 (D. Kan. 2009). (United States v. Huschak, ACM 35382 (A. F. Ct. Crim. App. 28 June 2004) aff’d 61 M.J. 154 (C.A.A.F. 2005). He was sentenced to 10 years of confinement, and the CA reduced confinement to 8 years. As Judge Rogers notes, no issues relating to the MSRP were raised at trial or on appeal. The case preceded United States v. Pena.

In the old days the military prisoner who reached the MRD would be released from confinement and released. There was no consequence to their current sentence if they got in more trouble, also the government couldn’t impose conditions on that release such as attending sex offender treatment programs. That meant that as they got closer to parole eligibility the prisoner started to think about gaming the system. At the time a paroled prisoner would be on the military leash up until their FTD, they could have parole revoked, and the could be back serving every day of the adjudged sentence. Typically that meant that a prisoner offered parole during their last year up to MRD gamed the system and refused parole. They’d have to serve up to their MRD for several more months, but it was better than being on the government leash for several more years through the parole system.

More on Stolen Valor

December 5, 2009 | The Law Office of Philip D. Cave

Here is a good site for information about Stolen Valor Act issues.

Web Site Aims to Uncover Fakers in Fatigues

Reportstolenvalor.org.