Court-Martial Trial Practice Blog

Crime in the military

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

The sad events at Fort Hood have caused some to review the general “crime rate” within the military. Slate’s Daniel Engber has this short piece.

Is There a Lot of Crime on Military Bases?Not as much as you’d think.

That said, major crimes have been in on the rise across all bases since 2003, according to a report (PDF) released in July. Rates of arrests for murder, rape, assault, and arson saw an especially large bump between 2007 and 2008. The study, which was commissioned after six members of the same brigade were charged with homicides over a 12-month period, found that soldiers with more combat experience—and whose units had suffered more casualties—were at greater risk than other soldiers of developing mental illness, conduct problems, and criminal behavior.

Navy PTA clause

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

CAAFLog has this interesting post and question about a new (?) clause in standard Navy PTA’s that remove good time credit.

This Agreement constitutes my request for, and the convening authority’s approval of, deferment of all confinement suspended pursuant to the terms of this Agreement and deferment for the days of “good time” (as defined by SECNAVINST 1640.9B) that I may earn while in confinement prior to the convening authority taking action on the sentence. The period of deferment will run from the date of sentencing until the date the convening authority acts on the sentence.

And here is CAAFlog’s question:

1Lt Behenna update

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

Robert Don Gifford has provided an update on the Behenna case.

The entire Oklahoma congressional delegation signed a letter for clemency on his behalf.

Recent radiocast from Tulsa radio morning program by host Pat Campbell

Military shooting – Major Hassan – green on green

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

As tallied by NBC News and the Associated Press (and me), they include:

Sept 13, 2009: SPC Beyshee Velez shoots civilian contractor at COB Speicher, Tikrit, Iraq. In pretrial confinement at Ford Island Naval Brig, Pearl Harbor, pending an Article 32, UCMJ, hearing.
July, 20, 2009: Fort Hood officials have a soldier behind bars after another soldier was shot and killed at a party on the Central Texas Army post. 30-year-old Spc. Ryan Richard Schlack of Oshkosh, Wis., died at a Fort Hood hospital July 18. The Killeen Daily Herald reported he was hit by a bullet another soldier fired into a crowd on the lawn. A Fort Hood soldier, Spc. Armano Baca was charged with the murder.
May 11, 2009: Five soldiers shot dead at Camp Liberty in Baghdad by Sgt. John Russell. Pending court-martial. Currently confined at Butner Federal Medical Center, for a mental competence determination.
Sept. 8, 2008: Spc. Jody Michael Wirawan shoots himself to death after killing 1st Lt. Robert Bartlett Fletcher at Fort Hood.
Feb. 25, 2008: Dustin Thorson, an Air Force technical sergeant, fatally shoots his son and daughter at home on Tinker Air Base in Oklahoma in domestic dispute with ex-wife. He had been diagnosed with post-traumatic stress disorder after returning from Iraq.
June 7 2005: Two National Guard officers are killed by a grenade at headquarters in Tikrit. Staff Sgt. Alberto Martinez is later acquitted of murder in a court-martial.
March 23, 2003: Army Sgt. Hasan Akbar tosses grenades into three tents and then fires a rifle at Camp Pennsylvania in Kuwait, killing one and injuring 14. Akbar later receives death sentence.
Oct. 27, 1995: Sgt. William Kreutzer goes on shooting spree at Fort Bragg, killing one and injuring 18 in a sniper attack during formation. He is serving a life sentence after a death sentence was overturned.

Uniformed Services University of the Health Sciences/ Department of Defense/ Reuters
MAJ (Dr.) Hasan is was born in VA.
(CNN)
The son of immigrant parents from a small town near Jerusalem, he joined the Army right out of high school, against his parents’ wishes. The Army, in turn, put him through college and then medical school, where he trained to be a psychiatrist. (NYT)
Who is Nidal Malik Hasan? StarTribune.

Fort Hood shootings.

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

Stars & Stripes on FORT HOOD, Texas —

A soldier believed to be a trauma psychiatrist opened fire at a U.S. Army base in Fort Hood, Texas on Thursday, unleashing a stream of gunfire that left 12 people dead and 31 wounded. Authorities killed the gunman, and apprehended two other soldiers suspected in what appears to be the worst mass shooting at a U.S. military base.

A law enforcement official identified the gunman as Maj. Nidal Malik Hasan, listed by the Army as part of the services medical corps and was stationed at Darnall Army Medical Center at Fort Hood. Hasan earlier completed a fellowship in Disaster and Preventive Psychiatry with the Uniformed Services University of the Health Sciences.

Alert: 12 dead, 31 wounded at Fort Hood

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

AP reports:

A soldier opened fire at a U.S. Army base in Fort Hood, Texas on Thursday, unleashing a stream of gunfire that left 12 people dead and 31 wounded. Authorities killed the gunman, and apprehended two other soldiers suspected in what appears to be the worst mass shooting at a U.S. military base.

October Army Lawyer now on-line

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

Writing with Conviction: Drafting Effective Stipulations of Fact

Bridging the gap on CAAF

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

The Leaf Chronicle reports:

Military training takes many forms, and it doesn’t always involve guns and explosives, occasionally the weapon of choice is law books and verbal assaults.

The U.S. Court of Appeals for the Armed Forces on Wednesday heard the case of an Air Force staff sergeant at Fort Campbell, giving new military lawyers a glimpse of the court in which they will someday argue cases.

Reporters privilege “shield” rule

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

Federal Evidence blog has a nice update on S.448 which is the Senate version of H.R. 985. Basically, although termed the “Free Flow of Information Act,” it is the reporters privilege rule that has been circulating for some time now. Actual status? According to the bloggers:

Whether the Senate Judiciary Committee adopts the revision to S. 448 or not, the prospect for a quick passage of a media shield law would pose a challenge. At the present time Congressional leaders are suggesting that the session would not extend long past November. Even if a revised S. 448 was passed by the Committee and received passage on the floor, it would still have to be reconciled with the House version of the measure, which departs from many of the standards set out in the revision to S. 448.

LimeWire expertise

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

FederalEvidence blog has a good post on United States v. Caldwell, __ F. 3d ___ (5th Cir. October 26, 2009).

For those of us doing a lot of CP cases – LimeWire, one of several peer-to-peer file sharing programs, is increasingly found to be the method by which CP is received or transmitted. Typically the prosecution calls a forensic computer examiner as an expert witness (although I notice the Navy is trying to short-circuit this by calling the duty NCIS agent to testify about computers). Anyway, FEB notes the difficulty courts are having in deciding whether testimony about computers and/or software falls within [Mil. ]R. Evid. 701 (lay) or 702 (expert).

[T]he line between lay and expert testimony is very hard to discern. A closer question would have been raised in the case if an objection had been made at trial and review was under the less deferential abuse of discretion standard. The issue of lay versus expert testimony arises in other contexts, including on computer forensic testimony, as noted in these prior posts: Drawing The Line On Computer Forensic Expert And Lay Testimony (Part I); Drawing The Line On Computer Forensic Expert And Lay Testimony (Part II).