That business about justice delayed being justice denied apparently has a statute of limitations. At least, that must be the way it seems for Marco A. Bush, a former private first class in the Marine Corps.
I like to read S&S because of their ability to reduce an issue to its core point.
As spelled out in the new opinion: "The record was ‘apparently lost in the mail for over six years.‘"
A Dubay hearing is about to get underway in United States v. Hutchins.
August 18, 11:30 AM Dallas Progressive Examiner Herschel Tomlinson
CAAF has visited statements made by military judges post-trial typically in bridging the gap sessions. Here is an interesting grant and set-aside:
No. 08-0215/NA. U.S. v. Tyrice L. HAYES. CCA 200600910. Review granted on the following issue:
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT APPELLANT WAS NOT DENIED HIS RIGHT TO A FAIR TRIAL DESPITE THE MILITARY JUDGE’S (1)EXHIBITION OF BIAS, AFTER TRIAL, IN ANNOUNCING HIS PERSONAL DISTASTE FOR BOTH HOMOSEXUALITY AND APPELLANT; AND (2) HIS EXHIBITION OF PARTIALITY, DURING TRIAL, BY ADVISING THE GOVERNMENT ON TRIAL TACTICS.
Today’s New York Times has an article about fabricating DNA evidence in a laboratory. Unlike naturally-occurring DNA that could merely be planted at a crime scene, fabricated DNA would not require access to an original, physical specimen of a particular person’s DNA, so long as one had access to his DNA database profile. An excerpt from the NYT:
Scientists in Israel have demonstrated that it is possible to fabricate DNA evidence, undermining the credibility of what has been considered the gold standard of proof in criminal cases.
The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.
Here is a 10News report of a Marine at San Diego, a law school graduate on his way to becoming a Marine judge advocate.
A San Diego-based U.S. Marine officer, Capt. DW who is accused of rape and indecent assault, will be tried in a general court-martial set to begin Wednesday, Marine Corps officials said.
CAAF has released an opinion in United States v. Bush, __ M.J. ___ (C.A.A.F. 2009). That means, according to CAAFLog, two more to go before of all of the current pending decisions have been released. Judge Erdmann writes the opinion; Judge Ryan writes a “concur in the judgment” opinion which Judge Stuckey is in agreement with.
This is a post-trial speedy review case. The NMCCA decision was affirmed which denied relief. Appellant had submitted a general claim of prejudice without any supporting documents. The court also decided that the NMCCA erred in placing the burden on appellant to produce evidence of prejudice, but the error of burden shifting was harmless beyond reasonable doubt. The court specifically avoided creating a presumption of prejudice for future cases.
In her concurring opinion Judge Ryan said she wants to revisit the post-trial delay jurisprudence, and reject any decision-making based on a public perception of injustice theory. She is open to the possibility of relief where there is actual prejudice.
Professor Colin Miller of the excellent EvidenceProf blog alerts that the CrimLawProf blog is back up and running with a new cast of characters.
Here’s a little more on the Army’s reinstatement of the QMP program from Nancy Montgomery with Stars & Stripes.
After nearly seven years of suspension, what the Army calls the “Qualitative Management Program” is back, providing a means, the Army says, of ridding the service of marginal leaders. The QMP review applies to all retirement-eligible master sergeants, sergeants major and sergeants first class with 20 to 30 years of service in the regular Army, as well as the active Reserves and National Guard
I would assume that a side effect of this policy would be less willingness to grant certain types of clemency post-trial. I remember two “bottom-blows” in the Navy where less clemency was a side effect.
Military.com is reporting: August 14, 2009
(The talk is reported here.)
Associated Press
Court-Martial Trial Practice Blog
