The issue of post-trial delay and prejudice is on the front burner again as a result of CAAF’s decision in United States v. Bush.
Here is a repeat of part of a post of mine from April 2008.
1. After trial — sit down with the client and explain the post-trial process specific to the case. This is critical because the boilerplate post-trial advice given by the military defense and military judge is just that, generic non-specific advice.
Thursday, Columbus TV commentator and retired news anchor Al Fleming managed to do what every major network, cable news outlet, newspaper, magazine and blogger has failed to do for more than four decades: get William Calley to speak publicly about his personal day of infamy.
Ledger-enquirer.com, 21 August 2009.
AN EMOTIONAL WILLIAM CALLEY SAYS HE IS SORRY
VILSECK, Stars & Stripes Germany — A manhunt is under way for a U.S. Special Forces soldier who fled after being convicted of kidnapping and sexually assaulting a German woman.
| Sgt. 1st Class Kelly A. Stewart — who was found guilty of multiple charges including kidnapping, forcible sodomy and aggravated sexual assault of a woman in an August 2008 incident — was last seen early Thursday morning by his escort at an on-post hotel. |
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Stewart, 36, is an Iraq war veteran who trains fellow Special Forces soldiers at the International Special Training Center in Pfullendorf.
“He’s an angry animal and not a human,” said the 29-year-old victim, standing outside the Vilseck courthouse Thursday morning after learning he had disappeared. “I know how dangerous he is. It’s impossible to believe that they left him alone last night.”
Here’s an interesting piece from Volokh.
It appears the often bad habits of the military court-room have shown up in federal district court. The appellate judges don’t seem amused, but neither do they find prejudice. Tolerated misconduct without findings of prejudice don’t discourage, they encourage. However, here the defense counsel didn’t help – actually didn’t object.
The Nightmare of Every Rookie Prosecutor: Ouch. From Kozinski’s majority opinion:
Recently CAAFLog had a discussion about military appellate cases and publication or non-publication.
PACER is a pay to use system that allows access to lots of federal courts documents that are “publically available” but at a fee.
Recently a technology blogger I follow FutureLawyer had a comment about RECAP and PACER.
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.
Court-Martial Trial Practice Blog
