Court-Martial Trial Practice

The Pentagon Inspector General has announced plans to evaluate how well U.S. Central Command and Special Operations Command are following rules aimed at preventing war crimes.

In a memo issued Monday, the IG said that the investigation will focus on the commands’ efforts to carry out Defense Department directives aimed at reducing “potential law of war violations when conducting operations.”

The evaluation would also determine whether the two commands reported alleged war crimes in accordance with DoD policy, the IG said.

Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

So, should this excited utterance exception apply to a 911 call about a stolen gun. That was the question addressed by the First Circuit in its recen opinion in United States v. Estes, 2021 WL 128707 (1st Cir. 2021)..

Mil. R. Evid. 610 prohibits using a witness’s religious beliefs to bolster or undermine their credibility.

But what about questions regarding whether a defendant had a “come to Jesus” moment after committing the crime charged? That was the question addressed by the Court of Criminal Appeals of Tennessee in its recent opinion in Pillars v. State, 2021 WL 57953 (Tenn. Crim. App. 2021).

Asks Prof. Colin Miller. He concludes that

No, this isn’t about the President, but about one of his cases that leads us to consideration of attorney ethics when deciding to withdraw from a case.

Prof. Jonathan Turley has this critique of one of DJT’s attorney’s seeking to withdraw from litigation.

On January 7th, an attorney representing President Donald Trump filed a one-page motion of withdrawal from a case filed shortly after the election. That is hardly remarkable with attorneys entering and leaving cases every day in federal court. What is remarkable is the reason.  Philadelphia-based attorney Jerome Marcus told the United States District Court for the Eastern District of Pennsylvania that he was withdrawing because President Trump used him, and his election challenge, to “perpetuate a crime.”  The filing raises some troubling questions regarding the alleged criminal conduct as well as the necessity of making such an allegation in a simple motion to withdraw from representation.

The Air Force’s top enlisted leader is looking into an incident involving an airman who was sent a Letter of Reprimand and a Letter of Counseling shortly after attempting suicide, so reports Task & Purpose.

The airman said their unit, the 460th Space Wing’s Dental Flight based at Schriever Air Force Base, Colo., was plagued by toxic leadership problems and a hostile work environment, and other airmen stepped up on Facebook to share their own horror stories from the unit.

The situation came to light on Friday, when the popular Facebook page Air Force amn/nco/snco shared a message from an airman who was sent to a psychiatric facility for a week after attempting suicide with an IV catheter needle. The airman said they were sent to a facility by unit leadership not because they had attempted suicide, but because they showed up to work seven minutes late the day after the attempt.

The NDAA veto having been overridden, look for changes to Articles 6b, 66, 67, 140a.

• Review amendments.–The amendments made by subsections (b) and (c) shall take effect on the date of the enactment of this Act, and shall apply with respect to any case in which every finding of guilty entered into the record under section 860c of title 10, United States Code (article 60c of the Uniform Code of Military Justice), is for an offense that occurred on or after that date.
• Standby for “bridge” cases in the same or similar way we have seen bridge cases cause difficulties with instructions and post-trial?

The now law NDAA for 2021 has a number of provisions including this one. If you are not aware, compassion fatigue is a real thing even for lawyers, more for defense counsel and SVC’s than prosecutors. If you have compassion fatigue that can adversely affect your court-room work as well as relationships with others in the court-martial process.

Compassion Fatigue

Congress wants the Secretary of Defense take a look at this issue.

Prof. Colin Miller notes that prosecutor discipline for Brady violations is “rarer than steak tartare.”

He reports to case of a NY prosecutor suspended for two-years because of significant Brady violations.

On May 9, 2017, the former homicide prosecutor was caught withholding exculpatory material from Messiah Booker, a man charged with first-degree murder who had maintained his innocence. Mr. Booker was arrested and spent more than 18 months in jail awaiting trial before his defense lawyer discovered that Mr. Kurtzrock had altered hundreds of pages of police records to remove a wealth of exculpatory information, including evidence pointing to another suspect he knew Mr. Booker’s lawyer had been investigating. The prosecutor had also removed the covers of two police notebooks to make it look like his altered versions of the documents were the originals.

The Peace and Justice Initiative describes command responsibility as,

“Command or superior responsibility” is often misunderstood. First, it is not a form of objective liability whereby a superior could be held criminally responsible for crimes committed by subordinates of the accused regardless of his conduct and regardless of what his knowledge of these crimes. Nor is it a form of complicity whereby the superior is held criminally responsible for some sort of assistance that he has given to the principal perpetrators. Instead, superior responsibility is a form of responsibility for omission to act: a superior may be held criminally responsible under that doctrine where, despite his awareness of the crimes of subordinates, he culpably fails to fulfill his duties to prevent and punish these crimes.

Are you unsure if President Trump violated the concept of command responsibility when he granted pardons to servicemembers accused of war crimes? Stuart Ford is not sure either as he surveys the question in Has President Trump Committed a War Crime by Pardoning War Criminals? 35 AM. U. INT’L L. REV. 757 (2020).