Articles Tagged with army

On December 6, 2023, the Secretary of the Army, Ms. Christine Wormuth, fired Brigadier General (BG) Warren Wells, the Army’s chief prosecutor and head of the Office of the Special Trial Counsel (OSTC), for an email he had sent ten years prior while in a defense counsel role. This firing demonstrates that no military defense counsel can be certain that doing their job and defending you will not come back to haunt them down the road. It will always be in the back of their minds.

In 2013, Warren Wells was a Lieutenant Colonel and a Regional Defense Counsel supervising the Senior Defender Counsel at several Army bases and their subordinate military defense counsel. He sent an email to his Senior Defense Counsel on various defense matters that included a paragraph commenting on the pressure put on the Army by Congress and the media to send sexual assault cases to trial and then stated that they, as defense counsel were the last line of defense for the innocent. Ten years later, when Ms. Wormuth read the email, she found this sentiment so outrageous that she fired BG Wells within hours!

Today, every military defense counsel knows (especially in the Army) that something they do or say in your defense can be held against them in the years to come when they are up for promotion or in a different position as a JAG. The military branches try to have independent defense counsel while they are in defense counsel positions, but as the BG Wells story illustrates: nothing protects them when they are no longer in a defense counsel position. Your military defense counsel will hopefully do their best to represent you anyway, but he or she is not conflict-free, no matter how hard they try.

NMCCA has released a number of decisions.  Several have providency issues and issues not raised by appellate counsel.

United States v. Messias.  The court set-aside a finding of guilty to because of an inadequate providence inquiry.  No sentence relief granted.

While the providence inquiry establishes facts sufficient to demonstrate that the appellant drove on base and that he believed the driving to be wrongful, there are no facts developed which establish either the invalidity of the appellant’s license, if any, or in the alternative, his failure to have a valid license in his possession. We cannot infer either eventuality from this record. We are left with a substantial basis in fact to question this plea and conclude the military judge abused his discretion in accepting this plea on these facts.

Army Times reports:

A Fort Wainwright soldier is under investigation for allegedly posting a video on his Facebook site showing Iraqi children being taunted.

Navy Times reports:

ACCA has issued an opinion in United States v. Trigueros, 68 M.J. ___ (A. Ct. Crim. App. 2010).  [Post updated to address a CAAFLog point, to add some links, and try to fix some formatting.]

This case involves the common problem of discovery of a victims mental health records.  There are two troubling aspects to this case:  the trial counsel never made any effort to determine whether or not information responsive to a specific discovery request was available, and when the prosecution has access – as they frequently do – how can it not be a violation of  Article 46, UCMJ, for them to fail to turn over the information.

On 9 May 2007, trial counsel responded to the defense discovery request, stating in relevant part “[t]he Government is not aware of the existence of any such documentation regarding the records of the victims, Mrs. [JLC] and Mrs. [SCR].” In fact, trial counsel had not asked Mrs. SCR whether she had attended mental health counseling before responding to the defense discovery request.

CAAF has decided two cases related to Abu Ghraib:  United States v. Harman, and United States v. Smith.

The issue in Harman was factual sufficiency and the conviction and sentence was affirmed.

Appellant admitted to investigators that she took a new detainee, who had been placed on a box with a hood over his head, affixed his fingers with wires, and told him he would be electrocuted if he fell off the box. Appellant then photographed the victim who stood on the box for approximately an hour. Appellant admitted it was her idea to attach these wires, though military intelligence officials had not asked her or her colleagues to do so. Appellant thought this was permissible because “[w]e were not hurting him. It was not anything that bad.”

Defense Secretary Robert M. Gates said today that he has forwarded recommendations to the Army for disciplinary action against supervisors of the accused Ft. Hood shooter.

The LA Times reports.

The report recommends clarifying for unit commanders their responsibility in identifying people who could pose a threat. Unit commanders, according to the report, must become attuned to indicators of behavioral problems or the potential for violence or radicalization.

The Fall of a Black Army Officer: Racism & the Myth of Henry O. Flipper, by Charles M. Robinson III, Norman, Ok: University of Oklahoma Press, 2008.

In his 1994 book The Court-Martial of Lieutenant Henry Flipper, Robinson, an historian of the frontier army, held to the view that Flipper?s 1881 conviction for embezzlement was rooted in racism.

Reviewing materials not available at the time he did the earlier book, in the present work Robinson concludes that, while not denying the existence of racism in the army, Flipper had indeed been careless with funds, albeit probably intentionally.  Such financial misconduct apparently was not uncommon in the Old Army, as very young officers were often given responsibility for large sums with little or not training.  A number of other officers in the period were also found short in their accounts.  The penalties handed out to most of these officers, however, were not usually immediate expulsion from the service, which is where the Flipper case differs from theirs.

Will Major Hasan successfully use PTSD as a defense, or will it at least become a mitigating factor to be considered.  If the trial is at Fort Hood, as seems likely at the moment, many of the Members (jury) panel will already have quite a bit of extra-judicial information.

Here are some links relating to secondary traumatization.

Zimmering, Munroe, & Gulliver, Secondary Traumatization in Mental Health Care Providers, 20 Psych. Times (Apr. 2003).

I’m not posting much at the moment on the Fort Hood tragedy.  People can follow the news as easily as I can.  However, this article by Will Heaven in the (U.K.) Daily Telegraph did raise an eyebrow.

Fort Hood shooting: the death penalty would make Nidal Malik Hasan an Islamic martyr

The implication of the article is that commanders should make a political decision that seeking the death penalty is not a good idea.  Equally I suppose an argument could be made that the defense should make the geo-politics an issue because anything that might be “mitigating” must be considered when seeking to impose the death penalty.  I’m not an advocate of the death penalty for various reasons; a political decision is not one of the reasons I’m against the death penalty though.

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