Court-Martial Trial Practice Blog

Provident plea?

August 7, 2009 | The Law Office of Philip D. Cave

(1) An accused may not enter inaccurate, inconsistent, improvident, or uninformed pleas of guilty, and the military judge may not permit the accused to do so. UCMJ art. 45, 10 U.S.C. § 845 (1988); see United States v. Schwabauer, 37 M.J. 338 (C.M.A. 1993).

(2) Therefore, before the military judge may accept the accused’s pleas of guilty, the military judge must personally inquire of the accused as to the factual basis for the plea. R.C.M. 910(c), (e); Care, 40 C.M.R. at 253; see also United States v. Craney, 23 C.M.A. 519, 50 C.M.R. 658 (1975); United States v. Daniels, 39 M.J. 789 (N.M.C.M.R. 1993).

(3) The facts revealed by the accused must objectively support the plea. Schwabauer, 37 M.J. at 341 (citing United States v. Davenport, 9 M.J. 364, 367 (C.M.A. 1980)).

Up periscope snippets

August 7, 2009 | The Law Office of Philip D. Cave

Hours Before Court-Martial, Army Resister Victor Agosto Speaks Out on Why He’s Refusing to Fight in Afghanistan: from Democracy Now, 5 August 2009.

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Ex-soldier appeals court-martial, Rochelle Hines, Florida AP. (Hopefully it’s not his lawyer who has the names of the appellate courts wrong.)

Camilo Mejia, 1st GI to Publicly Resist Iraq War, Appeals Bad Conduct Discharge

Mejia-peace-web

Camilo Mejia is the first GI who served in Iraq to have publicly resisted the war. He was imprisoned for refusing to return. Today, he is appealing his bad conduct discharge from the military. We speak to Mejia along with his attorney, Anjana Samant of the Center for Constitutional Rights. [includes transcript]

GI Gets 30 Days for Refusing Deployment

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

August 06, 2009

Associated Press

FORT HOOD, Texas — A Soldier who refused to deploy to Afghanistan over his beliefs that the war violates international law was sentenced here Wednesday to a month in jail.

Spc. Victor Agosto, 24, of Miami, pleaded guilty to disobeying a lawful order to report to a site that performs medical, legal and other services for troops before they deploy. The judge also reduced his rank to the Army’s lowest level, a private, which also was part of the maximum penalty he faced in his plea agreement with the military.

Client mental health issues at trial itself

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

United States v. Usry, __ M.J. __, No. 1298 (C.G. Ct. Crim. App. Aug. 5, 2009).

This case discusses the different issues that can come up when there is an indication that the client is having a bad mental health day at trial. The problem can come from medications the client is on, or an ongoing diagnosed illness such as PTSD or TBI related issues. In Usry there are quite a few “issues.”

The report of the R.C.M. 706 board, Defense Exhibit D, records diagnoses of bipolar disorder, panic disorder, anxiety disorder, chronic posttraumatic stress disorder, and attention deficit disorder, predominantly inattentive subtype. It states that he is suffering from severe depression and is at significant risk for suicide. The report acknowledges that its findings “were made without access to all of the member’s mental health records, including documentation relating to his recent inpatient psychiatric hospitalization. . . . Nevertheless, the Board is confident of their findings and does not feel that possession of knowledge of the contents of the other treatment records would alter their findings.”

Office-in-a-Briefcase — Tech for Military Lawyers

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

[Note: sorta in construction]

Many are familiar with my office-in-a-briefcase: the color printer, color scanner, computer, and some peripherals that do — yes — do fit in a briefcase for traveling. Listed on this page are some items that I use or have come across that are useful in a mobile practice. Many of the items are free (it’s about overhead remember). Unfortunately lawyers using a military internet connection or computer may not be able to use all of these items because of restrictions.

Free items:

Adverse inferences

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

From time to time I try to get a judge to accept and instruct on an adverse inference. Or at least argue it. Generally adverse inferences come up when evidence is “lost” or there has been a refusal of discovery. Basically the argument goes that if the evidence isn’t provided for a reason within the control of the adverse “party,” then it can be argued or presumed that the information would have been favorable to the accused. Here is a nice little piece – from a civil case – that is of interest.

District Court concludes duty to preserve electronic and other evidence commenced on pre-complaint telephone call, warranting adverse-inference instruction sanction, in KCH Services, Inc. v. Vanaire, Inc., et al., _ F.Supp.2d _ (W.D. Ky July 22, 2009) (Civil Action No. 05-777-C).

It seems to me that CID/NCIS/OSI/CGIS have a duty to preserve evidence, along with gathering it. To the extent you may be able to find problems with evidence gathering, handling, witness notes or statements, etc., there may be a way to fit the adverse inference into a botched investigation argument. Just a thought.

/tip Federal Evidence blog.

Use Of Evidence In Electronic Format During Deliberations

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

Here is an interesting piece about Members having certain types of electronic evidence in the deliberation room.

A few federal courts provide guidance on the use of electronic evidence during jury deliberations, including the Ninth Circuit Model Jury Instructions and the U.S. District Court for the District of New Hampshire.

/tip Federal Evidence blog.

Military probes claims of anti-gay atrocities

August 4, 2009 | The Law Office of Philip D. Cave

Army, Rep. Frank investigating charge that soldiers killed gay Iraqis
By CHRIS JOHNSON, Washington Blade | Aug 4 2009, 1:38 PM

The U.S. military is investigating claims that U.S. service members were involved in committing atrocities against gays in Iraq, although at least one activist is skeptical about the veracity of the allegations.

The U.S. Army Criminal Investigative Command, the service’s primary criminal investigative organization, is looking into the allegations, which were first reported by the Blade last week. An investigator contacted the Blade seeking information on the story.

Miami Herald reporter cleared?

August 4, 2009 | The Law Office of Philip D. Cave

Here’s the initial story.

Military and Media Clash In Complaint

Navy Spokesman Alleges Abuse by Miami Reporter

By Howard Kurtz

Washington Post Staff Writer
Saturday, July 25, 2009

Sex and the Academy

August 4, 2009 | The Law Office of Philip D. Cave

The following is the breakdown of sexual assaults involving midshipmen reported at the Naval Academy from 2001 to 2006, according to an analysis of documents:

49 cases of mids accused of sexual assault.

11 cases were dropped when alleged victims declined to participate in an investigation, leaving 38 cases to be investigated.