Court-Martial Trial Practice Blog

Death penalty debate – more data points

November 14, 2009 | The Law Office of Philip D. Cave

Major Hasan’s acts at Fort Hood are quite appropriately being viewed as apt to impose a death penalty at his court-martial. Based on what we are seeing and hearing there seems to be little doubt that the prosecution can gain a conviction (although an insanity defense is not out of the question). Regardless, the events at Fort Hood are once again stirring the death penalty debate in general. So here is a piece about death penalty case exonerations.

This empirical study examines for the first time how the criminal system in the United States handled the cases of people who were subsequently found innocent through postconviction DNA testing. The data collected tell the story of this unique group of exonerees, starting with their criminal trials, moving through levels of direct appeals and habeas corpus review, and ending with their eventual exonerations. Beginning with the trials of these exonerees, this study examines the leading types of evidence supporting their
wrongful convictions, which were erroneous eyewitness identifications, forensic evidence, informant testimony, and false confessions. Yet our system of criminal appeals and postconviction review poorly addressed factual deficiencies in these trials. Few exonerees brought claims regarding those facts or claims alleging their innocence. For those who did, hardly any claims were granted by courts. Far from recognizing innocence, courts often denied relief by finding errors to be harmless. Criminal appeals and postconviction proceedings brought before these exonerees proved their innocence using DNA testing yielded apparently high numbers of reversals—a 14% reversal rate. However, that reversal rate was indistinguishable from the background reversal rates of comparable rape and murder convictions. Our system may produce high rates of reversible errors during rape and murder trials. Finally, even after DNA testing was available, many exonerees had difficulty securing
access to testing and ultimately receiving relief. These findings all demonstrate how our criminal system failed to effectively review unreliable factual evidence, and, as a result, misjudged innocence.

From the introduction: Brandon L. Garrett, Judging Innocence, 108 Columbia L. Rev. 55 (2008).

Recruiter misconduct

November 14, 2009 | The Law Office of Philip D. Cave

If you are like me you get a lot of questions about recruiter misconduct, malpractice, and fraud. Here is an interesting article:

Note, THE LEGAL IMPLICATIONS OF UNAUTHORIZED PROMISES AND OTHER MILITARY RECRUITER MISCONDUCT, 17 J. Pub. Interest L. 141 (Feb. 2008).

I agree with this statement on About.com:

Here’s a start . . .

November 14, 2009 | The Law Office of Philip D. Cave

U.S. President Barack Obama Saturday urged members of Congress not to turn the investigation into the Fort Hood massacre into "political theater."

Reports Military.com. This is a step in the right direction. Ratchet down the political rhetoric, allow the investigators to get their work done, and allow the prosecution and defense to focus on their court-martial case.

Is this unlawful influence, or just a bad idea, or . . . ?

November 13, 2009 | The Law Office of Philip D. Cave

How far should members of congress or the President, or anyone, get involved in how to prosecute Major Hasan for his acts at Fort Hood. Certainly the victims are entitled to be involved and are required to be through the Department of Defense Victim-Witness Assistance Program. The program does not give politicians or government officials a right to be involved.

Risch Urges Additional Murder Charge in Fort Hood Slayings

This article reports that at least two Congress people are getting involved seeking to influence the prosecution of Major Hasan. Are they creating fodder for various defense motions, making the prosecutions job a political one, or just plain bad form. The talk is about Article 119a, UCMJ, a product of the Unborn Victims of Violence Act (UVVA), which is an outgrowth of special interests who convinced Congress in 2004 that a fetus is a child. It’s a political issue, it was a political hot-potato then, and potentially still is, albeit there is a statute in place. I guess we should see what other pressures and special interests can get on board to help the prosecutors out, and possibly the defense in the process – I’m sure both sides will be happy for the extra help.

Background testimony by police

November 13, 2009 | The Law Office of Philip D. Cave

I have previously noted the First Circuit’s criticism of prosecutors calling police to set the “context” of an investigation. The view being that’s it’s an attempt to have the police testify to a whole lot of inadmissible evidence and hearsay, and prejudice the members. The same issue should be avoided and objected to in a court-martial.

Prosecution “overview” witnesses and More on groundwork.

According to a post at FederalEvidenceBlog, the Tenth Circuit is joining in condemning the “apparently widespread abuse” of “background” testimony.

Change of court-martial venue

November 13, 2009 | The Law Office of Philip D. Cave

A question arises for Major Hasan and the court-martial about venue or situs or trial at Fort Hood or somewhere else. Here is the general rule from R.C.M. 906(b)(11), for a change of venue of a court-martial:

United States v. Curtis was at one time a death penalty case, but not anymore as a result of post-trial actions. Here though is the court on change of venue:

Appellant argues that the defense counsel should have asked for a change of venue because of pretrial publicity. However, pretrial publicity standing alone, no matter how widespread, is not a sufficient reason for a change of venue. As will be discussed in Issue XV, the defense is not entitled to have such a motion granted unless it is shown that such publicity has permeated the panel members. In most instances a motion for a change of venue takes place after the voir dire. But "where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it [**35] to another county…." Sheppard v. Maxwell, 384 U.S. 333, 363, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966). However, a showing of actual prejudice is usually necessary before a change of venue is granted. In this case the pretrial publicity had not so permeated the courtroom that the defense was left with promises of members to disregard what they might have heard.

Finally, a media outlet noticed a possible way out of death for Major Hasan, and avoidance of his potential for martyrdom

November 13, 2009 | The Law Office of Philip D. Cave

The Christian Science Monitor reports and makes this observation:

But emerging evidence that Hasan may have terrorist connections could alter the prosecutorial strategy, as his story would hold invaluable information for investigators. One way to get that information would be to offer Hasan a deal – such as revoking the death penalty if he’ll fill in the gaps in the investigation.

If there is validity to the potential terror information will both sides recognize it, recognize its value, and will those in power accept the likely criticism of the crowd for doing a deal? In order for a plea agreement the charges would have to be referred non-capital at court-martial. A person facing a death penalty on referred court-martial charges cannot plead guilty.

CAAF about to make a rule change?

November 13, 2009 | The Law Office of Philip D. Cave

It seems CAAF may be about to change the rule on how Grostefon submissions are made at CAAF.

Grostefon Draft Rule.

Grostefon Memo.

Mother to court-martial or Afghanistan; her child into custody

November 13, 2009 | The Law Office of Philip D. Cave

A number of groups are unhappy that Major Hasan has not been charged under Article 119a, UCMJ, yet for his killing of a pregnant mother and her fetus at Fort Hood. (See e.g. Pro-Life Group Asks Military to Charge Hasan) So far his court-martial charges are all the 118’s. One of the other issues that’s been discussed with Major Hasan is whether he tried to avoid going to deployment or asked to be discharged. Elsewhere, IPSnews.com reports:

U.S. Army Specialist Alexis Hutchinson, a single mother, is being threatened with a military court-martial if she does not agree to deploy to Afghanistan, despite having been told she would be granted extra time to find someone to care for her 11-month-old son while she is overseas.
Hutchinson, of Oakland, California, is currently being confined at Hunter Army Airfield near Savannah, Georgia, after being arrested. Her son was placed into a county foster care system.

So, how hard is it to avoid deployment without going AWOL?

AF nurse case is in the initial trial stages

November 13, 2009 | The Law Office of Philip D. Cave

WOAI.com reports:

A former military nurse will be court-martialed for allegedly killing three terminally ill patients at the Air Force’s largest hospital. Capt. Michael Fontana is set to enter a plea in September at Lackland Air Force Base, near San Antonio. The military announced Tuesday that a trial date will also be set.

Charges have not been referred capital.