Court-Martial Trial Practice Blog

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.

So which – – –

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

So which CID agents are violating Article 92, UCMJ? And if they are lawyers on the government side, which lawyers are violating Article 92, UCMJ, and ethics rules for lawyers in the Army regarding pretrial publicity?

officials told The Associated Press on condition of anonymity because they were not authorized to speak about the case publicly.

Army Times.

A SPCM panel of at least three not unconstitutional

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

(Thanks to Volokh Conspiracy) we have Sanford v. United States, No. 08-5402 (D.C. Cir. 13 November 2009), in which the court held that a SPCM with less than six members is not unconstitutional. The court notes that:

This court has recognized that the standard of review in non-custodial collateral attacks on court-martial proceedings is “tangled.” United States ex rel. New v. Rumsfeld, 448 F.3d 403,
406 (D.C. Cir. 2006) (“New II”).

Sanford had been arguing that the government had the burden to demonstrate reasons why there should not have been at least six members on his court-martial panel, in accordance with Ballew v. Georgia, 435 U.S. 223 (1978). The district court dismissed Sanford’s case, and he appealed. The circuit court ultimately concluded that the burden was on Sanford to show reasons why there was a constitutional violation and that because he’d not done so, dismissal was proper. Thus, a special court-martial can still have less than six members. It is uncertain if Sandford will appeal.

Social sites and court-martials

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

I have mentioned several times that I always look for MySpace, Facebook, and other social network accounts held by witnesses at a court-martial trial I have. In a number of instances I have found information, photographs, or leads to other information that has been useful for cross-examination at the court-martial. Google and other social network sites can be a useful investigative tool for military lawyers. See CNN Justice: Facebook status update provides alibi; The Local, His Facebook Status Now? ‘Charges Dropped;” Professor Colin Miller has more on his Blog.

Here is a case from New York City in which the accused’s Facebook activity proved his alibi. This case also, again, points out the fallacy of identifications. The accused was a suspect in a robbery and was picked out of a line-up.

Rodney Branford claimed alibi. He claimed and had his family testify that he was elsewhere on his father’s computer updating his Facebook account at the time of the robbery. The prosecutors didn’t think that was sufficient proof of alibi and were still going toward trial. Heck who believes and accused and his family. At least the prosecutor was willing to work with the defense and subpoened records from Facebook. The records showed that indeed he was updating his Facebook account from his father’s computer (IP address).

Wrong!

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

Online Newshour reports:

And it doesn’t have to be all 12 members voting him guilty. Two-thirds to convict is enough. And it does have to be unanimous to give him the death penalty.

In a death penalty case the members have to be unanimous on a finding of guilty. The unanimity requirement different than for any other special and general court-martial.

Courtrooms

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

How the Military Will Try Nidal Hasan

This reminds me of A Few Good Men. Remember, in the Navy court-room the Army JAG symbol is on the podium.

Well here they have a picture of courtroom A at Marine Camp Foster, Okinawa, Japan. We know the picture’s about a year old because the major pictured is now the head defense counsel in that same LSSS.

I think it unlikely the Army will move Hasan to Camp Foster for court-martial.