Court-Martial Trial Practice

Detention policy questioned after soldier’s escape

By Steve Mraz  and Seth Robbins, Stars and Stripes
Mideast edition, Friday, August 28, 2009

Army officials are investigating how a Special Forces soldier was able to simply disappear last week, a few hours after his conviction for the kidnapping and sexual assault of a German woman.

Kelly A. Stewart was not guarded, and legal experts point to a gray area in the U.S. Military Manual for Courts-Martial that leaves the securing of a convicted soldier to a judge’s discretion. It also requires that the government specifically demand the soldier be detained before sentencing.

Readers will remember that there is a great deal of talk and decision making about cases where an appellant has failed to file his or her petition for review with CAAF in a timely manner.  Here is a link to CAAFLog for a history of the discussions.  CAAF determined that the filing deadline is jurisdictional and has been dismissing cases.  Prior to CAAF’s decision on the deadline appellant’s would routinely have filings “out of time” granted.  Regardless of how that became something of a habit, many petitioners have now lost their right to petition to CAAF because CAAF is now enforcing the rules.  Hopefully the number of these cases is dwindling as the appellate shops get control of their docket and establish procedures to ensure continued representation and timely filings.  Here, in a “concurring in the result” Chief Judge Efron, again, reminds the TJAG, that in such cases the TJAG could certify them to CAAF.  There are some potential political and theoretical concerns with that procedure.  Regardless, there seem to be some good reasons why the TJAGs should in fact certify Rodriguez like cases, we’ll see.  Perhaps the TJAGs could at least certify the non pro-forma cases.  Some petitioners petition CAAF because they can, not necessarily because they have meritorious issues.  I call these pro-forma cases.  Anyway, here’s the Journal entry that got me started.

No. 09-0030/AR. United States, Appellee v. Josh R. RITTENHOUSE, Appellant. CCA 20050411. On consideration of Appellant’s petition for reconsideration of this Court’s order dismissing Appellant’s petition for grant of review as untimely filed, __ M.J. __ (Daily Journal, June 25, 2009), it is ordered that said petition for reconsideration be, and the same is hereby denied.

EFFRON, Chief Judge (concurring in the result):

Soldiers recovering in special Army medical units have faced inconsistent discipline because the military hasn’t adopted standards for how they and their commanders should act, according to a military review.

The review was ordered in March after The AP reported on Soldier complaints that officers were indifferent to their medical needs and punished them for the very injuries that landed them in the unit.

Military.com, 27 August 2009.

There is an ongoing dispute about whether DoD is screening reporters who are allowed to embed in Afghanistan.  The allegation is that there is or will be a preference for those who give favorable reports about the military.  Here is the latest (as usual the DoD is at stage one – complete denial, stand-by for correction blaming a miscommunication or low-level employee).

Files prove Pentagon is profiling reporters

Stars and Stripes
Mideast edition, August 27, 2009

WASHINGTON — Contrary to the insistence of Pentagon officials this week that they are not rating the work of reporters covering U.S. forces in Afghanistan, Stars and Stripes has obtained documents that prove that reporters’ coverage is being graded as “positive,” “neutral” or “negative.”

Moreover, the documents — recent confidential profiles of the work of individual reporters prepared by a Pentagon contractor — indicate that the ratings are intended to help Pentagon image-makers manipulate the types of stories that reporters produce while they are embedded with U.S. troops in Afghanistan.