Court-Martial Trial Practice Blog

Another misrepresentation of military service?

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

I’ve posted before about different cases where a service-member or civilian have “invented” their military career. Two recent examples are here and here. Now there’s another. Military.com reports that a retired senior chief petty officer appears to have fabricated his presence in USS COLE when the ship was attacked.

In early November, retired Senior Chief Jeffrey Sparenberg was the guest of honor at military heritage day in Delaware.

Sparenberg spent 23 years in the Navy, including time on the destroyer Cole, and he was at Fort DuPont State Park that day to donate a flag that he said flew over the Cole shortly after it was attacked nine years ago.

The Rule of Lenity

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

The “rule of lenity” “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”

From Levin, Daniel and Stewart, Nathaniel, Wither the Rule of Lenity, Engage, November 16, 2009. This is a claim or objection I have used from time to time, not always successfully. Typically I’m using it as an argument regarding application of an R.C.M. or Mil. R. Evid., an argument by analogy I suppose. Another way to express this would be that where there is an ambiguity the ambiguity should be construed against the writer. Perhaps there is some hope?

In 2008, in United States v. Santos, the Supreme Court issued a plurality opinion holding that a key term in a federal money laundering statute was ambiguous and applied the rule of lenity to resolve the ambiguity in the defendants’ favor. The plurality involved just such a coalition of conservative and liberal Justices (Justices Scalia, Thomas, Ginsburg, and Souter; with Justice Stevens writing separately and agreeing that the rule should apply), raising the question of whether the rule may be entering a period of somewhat greater application…

Pew research on military justice

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

I found this piece by the Pew Research Center’s Project for Excellence in Journalism of passing interest. The lead blog story for a while is the SEAL case and the pending court-martial. I find it surprising in light of the ongoing events regarding Major Hasan at Fort Hood.

Former Gitmo prosecutor released from CRS employment

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

Washington Post reports that Col Morris Davis will be released at the end of his probationary period with Congressional Research Service because of recent media pieces.

In the Nov. 10 Journal article, Davis wrote that Attorney General Eric H. Holder Jr.’s decision to use both federal court and military commissions to try detainees was "a mistake."

"It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions," Davis wrote.

Flawed sex assault program

December 4, 2009 | The Law Office of Philip D. Cave

A DoD report is critical of progress regarding sexual assault in the military. Overall the report seems a fair response. This part however is troubling:

Included in the task force’s 30 primary recommendations are a number of actions for helping victims of sexual assault, such as a suggestion that legislation be enacted requiring the Uniform Code of Military Justice to include a comprehensive provision on privileged communications between victims of sexual assault and victim’s advocates.

The task force interviewed service members who reported being re-victimized when their previous statements to medical personnel and victim’s advocates were used to cross-examine them in courts-martial.

Prosecutors still playing games with discovery

December 4, 2009 | The Law Office of Philip D. Cave

United States v. Mott, once again, explores the prosecution obligation to disclose favorable evidence to the defense at court-martial. In this case, the prosecutions own expert agreed with the defense theory as to the accused’s mental status. None of this was disclosed to the defense.

In the instant case, this first step of analysis need not detain us. The Government concedes that their expert, Dr. Hagan, verbally informed the trial counsel that he agreed with the defense expert that the appellant suffered from a severe mental disease and that said disease caused the appellant not to understand the wrongfulness of his actions at the time of the charged misconduct. We have no doubt that knowledge of the existence of a Government medical expert whose professional opinion wholly supported the opinion of the defense expert is a fact both favorable to the appellant and material to an assessment of his guilt and/or punishment. We find, therefore, that the trial counsel’s failure to disclose the expert medical opinion of their expert, Dr. Hagan, was error.

“[N]eed not detain,” because it is patently obvious the information is discoverable. This case is from RLSO Norfolk. Doesn’t surprise me in the least.

Catching up on Major Hasan news

December 4, 2009 | The Law Office of Philip D. Cave

Sane or insane, Major Hasan’s mental state before and during his alleged offenses will be raised in his court-martial. Death penalty cases are different so sayeth they U.S. Supreme Court. Everything must be raised that could possibly have some impact on either the finding of guilt to a capital charge or in sentencing. The Supreme Court decision in Porter v. McCollum makes it clear that failure to raise mental health issues, including PTSD, will likely lead to a finding of ineffective assistance of counsel. A distinction can be argued between Porter and Hasan — one was in combat, the other about to get into vicarious PTSD issues. But any competent attorney for Major Hasan has to consider the mental health issues as vital to the defense presentation.

Been gone for a family emergency so I won’t go too far back. But . . .

DoD reports that:

It was love

December 4, 2009 | The Law Office of Philip D. Cave

Naplesnews.com reports that:

The trial counsel in United States v. Piotrowski, ARMY 20010721, 2006 CCA LEXIS 487 (A. Ct. Crim. App. January 31, 2006) pet. denied 64 M.J. 430 (C.A.A.F. 2007).

He smashes into a car, killing a 24-year-old woman who is pregnant with her first child.

Fort Lewis murder case

December 4, 2009 | The Law Office of Philip D. Cave

Seattleweekly.com reports:

Having now admitted to murder, Fort Lewis Spc. Ivette Davila today awaits word on whether she will face the death penalty for it.

Davila, 23, an Army chemical specialist, is charged with killing Staff Sgt. Timothy Miller and Sgt. Randi Miller in their Parkland home March 2, 2008, soaking their bodies in muriatic acid and kidnapping their 7-month-old daughter.

Chessani board

December 4, 2009 | The Law Office of Philip D. Cave

Stars & Stripes reports:

A prosecutor has argued that a Marine Corps officer facing demotion failed to fully disclose and investigate the killing of two dozen Iraqi men, women and children by Marines under his command.

But a defense attorney called the retired officer a highly qualified leader who took the fall amid political pressure fueled by inaccurate media reports of what was a chaotic firefight with insurgents and not a war crime.