Court-Martial Trial Practice BlogMisc. No. 11-8009/MC. Frank D. WUTERICH, Appellant v. David L. Jones, Lieutenant Colonel, United States Marine Corps, in his capacity as Military Judge, and United States, Appellees. CCA 200800183. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.
Articles Tagged with UCMJ
False confessions in the spotlight
Thanks to Sentencing Law & Policy:
PBS Frontline has been giving lots of attention to criminal justice systems this fall. . . . This week Frontline will broadcast a new documentary "The Confessions," which examines the case of the "Norfolk Four" involving a quartet of Navy men who were wrongfully convicted after being coerced into giving false confessions.
A preview is at this link.
A quick reminder for “documents” cases
My good friend Bill Cassara and I have done a lot of BAH/TCS fraud cases at court-martial under the UCMJ over the years. Typically the case involves a lot of documents from DFAS. The prosecution then calls a witness from DFAS to lay a foundation for the documents and then has the witness testify as to what the documents mean in terms of monies claimed and paid compared to the legal entitlements. Because these documents are of many pages the witness typically prepares a chart which summarizes the documents and the bottom lines. There is nothing wrong with that so long as the underlying documents are admissible (usually as business records and documents prepared and submitted by the accused), the chart is an accurate representation of the documents, and the witness who prepared the chart or summary is available for cross-examination.
The case of United States v. Hemphill, 514 F.3d 1350 (D.C. Cir. Feb. 8, 2008) (Nos. 06-3088, 06-3089, 07-3016), noted by federalevidence.com, reminds us of this point.
Cross-examination might expose errors or inconsistencies in the chart. At which point the parties can refer to the original documents if necessary. Assuming the errors or inconsistencies are identified and cross-examined on the testimony is then judged as to its weight not admissibility.
LCMJ
Here is an upublished opinion in the Court of Appeals, First Circuit, State of Louisana, in State v. Davis.
Note, this case was a court-martial tried under the Louisiana Code of Military Justice (a National Guard case).
La. R.S. 29:101-242, applies to all members of the state military forces when not subject to the Uniform Code of Military Justice (UCMJ) and while in a duty status or under a lawful order to be in a duty status. The processing of charges and all proceedings, including trial, may be conducted without regard to the duty status of the accused. La. R.S. 29:102(A) and (C).
Collateral consequences-immigration
And here is an Air Force Times report:
When Rohan Coombs joined the Marine Corps, he never thought one day he would be locked up in an immigration detention center and facing deportation from the country he had vowed to defend. . . .
The estimates are of about 8000 non-U.S. citizens enlisting to serve in the U.S. armed forces in any given year.
NMCCA provides reminder of multiplicity in drug cases
United States v. Pippins, is a reminder that when a person possesses drug for a persons own use and/or distribution, the possession is an LIO of the use or the distribution.
A review of multiplicity in this case centers on whether the appellant’s possession of BZP is in the same act or course of conduct with her use and distribution of BZP. See United States v. Paxton, 64 M.J. 484, 490 (C.A.A.F. 2007); United States v. Teters, 37 M.J. 370, 373 (C.M.A. 1993). Possession is a lesser included offense of both use and, under the facts of this case, distribution. See MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.), Part IV, ¶ 37d. See also United States v. Zubko, 18 M.J. 378, 385-86 (C.A.A.F. 1984).
Thus, any time an accused is charged with both use and possession or distribution and possession of the same amount, there should be a dismissal for multiplicity.
You could have this
For all of the criticisms of military justice and the UCMJ, you don’t have this at court-martial as tipped by Sentencing Law & Policy blog.
Cargill, a federal public defender, was perturbed by a rarely discussed U.S. court rule that critics say conflicts with the presumption of judicial openness. In the Western District of Virginia, as in many other U.S. court districts, a probation officer makes a secret sentencing recommendation to the judge. Cargill accidentally saw the probation officer’s recommendation for his client. The report was "misleading and inaccurate," Cargill wrote in a protest letter. (Emphasis added.)
Here is a link to the full article in the Roanoke (VA) Times.
Up periscope
Air Force Times reports:
A U.S. soldier was taken into custody after an Afghan detainee was found dead in his cell, apparently from a gunshot wound, NATO said in a statement Tuesday night.
Military.com reports:
Pretrial and trial publicity
Federal Evidence Review references:
In conspiracy and arson trial, reversing and remanding when trial court failed "to make adequate inquiries regarding news stories" that appeared during deliberations and their impact on juror’s deliberations; the judge erroneously failed to explore "whether any juror heard any of the information" and its impact on the jury, in United States v. Waters, __ F.3d __ (9th Cir. Sept. 15, 2010) (No. 08-30222)
The Ninth Circuit recently considered the trial court’s responsibilities to make specific inquiry of jurors when "adverse publicity occurs during deliberations" of the jury. The case can help clear up confusion about the role of the trial court, particularly in light of FRE 606(b) limiting inquiry into a verdict.
Ramrod Five/Stryker brigade
USA Today is reporting that Morlock has been referred to trial non-capital. As does Reuters, MSNBC and other news outlets.