Court-Martial Trial Practice Blog

New Coast Guard decision

September 15, 2009 | The Law Office of Philip D. Cave

The CGCCA has decided United States v. Molena.

Before this Court, Appellant has assigned the following four errors:
I.
Appellant was denied effective counsel when his attorney erroneously informed him that he would not need to register as a sex offender.
II.
The bad-conduct discharge is an inappropriately severe sentence.
III.
Defense counsel’s failure to submit evidence regarding SA O’s character resulted in ineffective assistance of counsel.
IV.
Appellant’s plea was involuntary due to a failure by the Convening Authority to adhere to a material term of the pretrial agreement.
We grant relief on Assignment of Error IV (AOE IV) by setting aside the findings of guilty to Charge IV and its specification, indecent exposure.

By setting aside the charge on IV the court mooted the allegation of IAC.

Abu Ghraib appeals.

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

I posted the ACCA decision in Lynndie England’s Article 66, UCMJ, appeal.

Now this: Monday, Sep. 14, 2009, Military high court to hear Abu Ghraib appeals, By DAVID DISHNEAU –

HAGERSTOWN, Md. — The U.S. military’s highest court has scheduled oral arguments next month on two appeals stemming from the abuse of detainees at Abu Ghraib prison in Iraq.

The appeals of former Sgt. Michael Smith, an Army dog handler, and former Spc. Sabrina D. Harman, an Army military police reservist, are the first the U.S. Court of Appeals for the Armed Forces in Washington has agreed to hear since photographs of naked detainees in humiliating positions shocked the world in 2004.

More on Congressman Wilson and UCMJ jurisdiction.

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

Bobby Gifford has been kind enough to point our attention to this article.

COURT-MARTIAL JURISDICTION OVER RETIREES UNDER ARTICLES 2(4) AND 2(6): TIME TO LIGHTEN UP AND TIGHTEN UP? By J. Mackey Ives & LTC(R) Michael J. Davidson, 175 Mil. L. Rev. 1 (March 2003)

"In contrast, retired reservists are only subject to military jurisdiction when receiving hospitalization from the military, regardless of their entitlement to retired pay."

Lynndie England – ACCA decision.

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

ACCA has issued a memorandum opinion in United States v. England, ARMY 20051170 (A. Ct. Crim. App. 10 September 2009).

[A]ppellant claims, inter alia, that (1) the military judge abused his discretion when he rejected her guilty plea; (2) appellant’s trial defense counsel were ineffective for calling Private (PVT) Charles Graner as a presentencing witness, in the alternative; and (3) information about an Article 15, UCMJ, was erroneously included in the staff judge advocate’s recommendation (SJAR).. . .

We find the first two assignments of error merit discussion but no relief. In addition, we find appellant’s third assignment of error is meritorious and will grant relief in our decretal paragraph. The remaining assignments of error are without merit.

Need an address?

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

Need to find a current address for a witness in a case?

Boxbreaker, Slang for a form used by the United States Post Office. Its called Request for Boxholder Information for Service of Legal Process. Take the form to the nearest Post Office to your targets last know address and the U.S Postmaster will provide you with a forwarding address. The forwarding address can also be obtained using a blank envelope and mailing a letter to the last know address with the following words capitalized AND underlined.

“FORWARDING ADDRESS REQUESTED – DO NOT FORWARD”

This usually comes back in a week and again almost always works so long as the forwarding address is on file with the USPS.

/tip federalcriminaldefenseinvestigator.blog

Congressman Wilson and the twittersphere.

September 12, 2009 | The Law Office of Philip D. Cave

Quite a few people are twittering and blogging about Congressman Joe Wilson’s recent behavior during the President’s speech to Congress. The basic claim is that he is subject to court-martial. Maybe, maybe not.

Here is what he has on his biography on his official site:

Throughout his life, Joe has also had a tremendous passion to serve his country as a member of the United States Armed Forces. After serving in the United States Army Reserves from 1972-1975, he also served in the South Carolina Army National Guard. In the summer of 2003, Joe retired as a Colonel, having served as a Staff Judge Advocate assigned to the 218th Mechanized Infantry Brigade. At the time, he was the only active Guard member serving in Congress.

More on Briscoe

September 12, 2009 | The Law Office of Philip D. Cave

I’ve already noted that Briscoe is a very interesting follow-on to Melendez-Diaz about the use of forensic analysis reports at trial where the chemist is not called as a witness. See here, here, and here.

Here is a link to the Brief just filed on behalf of the

07-11191 Briscoe v. Commonwealth of Virginia

Marine sentenced to 8 years in DYTM case.

September 10, 2009 | The Law Office of Philip D. Cave

Marine sentenced to eight years for death in ‘trust me’ game

September 10, 2009 7:49 PM, by Amanda Hickey, of JDNews.com

(Photo: Don Bryan) A Camp Lejeune Marine pleaded guilty Thursday to pointing a weapon at seven Marines and one sailor in a deadly game that left one Marine dead.

Cpl. Mathew R. Nelson pleaded guilty to involuntary manslaughter and seven counts of reckless endangerment during court martial proceedings aboard Camp Lejeune for shooting Lance Cpl. Patrick Malone in the forehead with a 9mm pistol and pointing a 9mm pistol at six additional Marines and a sailor as part of the “trust game” while deployed to Iraq between Oct. 18, 2008, and March 13. The other service men involved according to court testimony were Lance Cpl. Justin D. Brown, Lance Cpl. Christopher K. Motley, Lance Cpl. David W. Bills, Lance Cpl. Emanuel A. Pacheco, Lance Cpl. Carlos F. Sanchez, Lance Cpl. Emerson E. Boutin and then-Petty Officer 3rd Class Spencer H. Hamer.

Naval officer strikes plea deal in sexual assault case.

September 10, 2009 | The Law Office of Philip D. Cave

This story is out by Kate Wiltrout of The Virginian-Pilot, September 10, 2009

NORFOLK

A naval officer accused of sexually assaulting a junior enlisted sailor has pleaded guilty to two charges but maintains he did not commit assault.

A military judge is slated to sentence Lt. Jerome H. Randolph later today. Under the terms of a plea agreement, he faces up to 30 months behind bars as well as discharge from the Navy.

Panels on SCOTUS “jurisprudence.”

September 10, 2009 | The Law Office of Philip D. Cave

SCOTUSBlog has provided this excellent summary of panels over the next few weeks which will address past and pending issues before the court. Not all of the issues may be relevant to day to day lawyering in a court-martial setting, but worth considering. A reminder that SCOTUSBlog is the best website out there with relevant and timely information about what is going on at the Supreme Court. Overall the bloggers make an effort to be non-partisan and minimize the advocacy – which in today’s shouting head media context is very good. SCOTUSWiki is a further good source for information and arguments in pending Supreme Court cases where you may have a similar issue pending at trial, or where you are looking for litigation ideas.

Weds., Sept. 16 at 4 p.m.: The American Bar Association will host “On the Docket: The Legal and Media Worlds Look at the Supreme Court 2009 Term” at the Newseum. Tom Goldstein will be a panelist. Click here for more information and registration details.

Thurs., Sept. 17 at 10:30 a.m.: The Cato Institute will host a Constitution Day symposium, “The Supreme Court: Past and Prologue—A Look at the October 2008 and October 2009 Terms.” Click here for more information and registration details.