UCMJ Tag Archives — Page 35 of 51 — Court-Martial Trial Practice Blog

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March 13, 2010 | The Law Office of Philip D. Cave

Here is a piece about guilty pleas in military death penalty cases from FDL.

The New York Times is reporting that the Obama Administration is considering changing the law to permit prisoners at Gitmo to plead guilty to death penalty cases without need for a trial. This is apparently a reaction to the stated desires of five Gitmo prisoners to become "martyrs."

WHIO reports that: the Article 32, UCMJ, hearing “in response to allegations that the former top enlisted man at the base sexually harassed 10 female co-workers. [will be held 26 May].”

Update on SEAL cases

March 13, 2010 | The Law Office of Philip D. Cave

Kate Wiltrout in the Virginia Pilot reports that the military judge has directed five defense witnesses be given immunity or the proceedings will be abated.

The case against a Navy SEAL accused of not protecting an alleged Iraqi terrorist took a major turn Friday when a military judge ordered that five key defense witnesses be granted immunity to testify on his behalf. If not, he warned, the case will be halted.

Here is an interesting comment on CAAFLogs post on this case.

Major Hasan update

March 13, 2010 | The Law Office of Philip D. Cave

Daily Caller reports that:

Following a two-week absence, the Fort Hood attorney was back at it Friday despite a gag order, blogging on the perceived injustices suffered by his defense team in defending Major Nidal Hasan, the man charged in the shooting deaths of 13 people.

As previously reported by The Daily Caller, John P. Galligan, Hasan’s civilian defense attorney, made waves in the legal community when he launched the high-profile blog to highlight his obstacles in defending the case. The blog was silent for nearly two weeks after the initial controversy erupted, but he’s back, saying: “My blog will continue to highlight how my client is being unfairly treated.”

Collateral consequences sex offender registration

March 11, 2010 | The Law Office of Philip D. Cave

In this case we decide whether Joshua Williams, who pleaded guilty to carnal knowledge of a minor in violation of military law while serving in the Navy, is exempt from registration as a sex offender pursuant to Penal Code sections 290, subdivision (c) and 290.005 (undesignated statutory references are to the Penal Code), and therefore entitled to have his name removed from the Justice Department’s sex offender registry. We conclude that based on Williams’s plea, he was denied equal protection of the law in that persons convicted in California of the equivalent offense of unlawful sexual intercourse in violation of section 261.5 are not required to register. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1206-1207 (Hofsheier).) In reaching this conclusion, we focus on the offense of which Williams was convicted, not a hypothetical offense of which he could have been convicted based on the conduct underlying the charge. (People v. Ranscht (2009) 173 Cal.App.4th 1369, 1374-1375 (Ranscht).) Accordingly, the trial court erred in denying Williams’s request to have his name removed from the registry.

Williams v. Superior Court of San Diego, D055457 (10 March 2010).

Hennis-DP-update

March 11, 2010 | The Law Office of Philip D. Cave

FayObserver reports that:

A 12th juror was seated in the court-martial of Army Master Sgt. Timothy B. Hennis at Fort Bragg this morning, but the total was quickly knocked back to 10.

Attorneys on both sides exercised their right to peremptorily challenge one juror each.

Discovery-innocent ingestion

March 11, 2010 | The Law Office of Philip D. Cave

R.C.M. 701(b)(2) sets out the requirement for defense disclosure if there will be an innocent ingestion defense.

Assuming the accused is the only witness who may testify to an innocent ingestion, must the defense disclose that under the rule. My answer is no. To force a disclosure prior to testimony violates the accused’s right to silence at trial and under Article 31, UCMJ. The President has addressed this issue in R.C.M. 701(g)(3)(D), and IMHO C.A.A.F. has also put the question to rest.

Appellant argues before this Court that the military judge improperly restricted his right to present his defense at this court-martial. This improper restriction, he asserts, stems from the trial judge’s misreading of RCM 701 and his resulting rejections of appellant’s profferred defense of "innocent ingestion." He contends that the trial judge erroneously prevented him from testifying to his belief that his drink was spiked, and to the circumstances supporting that belief, unless he had corroborating witnesses who actually tampered with his drink or saw someone else do it. We hold that the trial judge’s reading of RCM 701 was incorrect.

Hennis-DNA issues

March 11, 2010 | The Law Office of Philip D. Cave

I came across this item reading some history on the current court-martial. DNA has gained a prominent place in the prosecution and defense of criminal cases. But this piece illustrates that the DNA may only be as good as the testing done and the people doing the testing.

The Army began its prosecution in 2006 after a cold case detective with the Cumberland County Sheriff’s Office ordered DNA tests on the rape kit of Eastburn and on a blood sample from Hennis. That testing, conducted by the N.C. State Bureau of Investigation, matched Hennis’ DNA to sperm found in the rape kit, according to court documents.

The military has done further testing, lawyers said Monday.

Up periscope

March 11, 2010 | The Law Office of Philip D. Cave

Army Times reports.The Army says a soldier who returned to a hero’s welcome in Wisconsin misrepresented his rank, badges and the origin of his injuries.

FayObserver reports:

The 11th juror was provisionally seated in the court-martial of Army Master Sgt. Timothy B. Hennis on Wednesday.

CAAF speaker Jeh Johnson

March 10, 2010 | The Law Office of Philip D. Cave

Points of interest to military justice from the current General Counsel to the Department of Defense:’

Development of the rules of practice and procedure for Military Commissions. The Department regularly consults with and takes input from defense counsel involved in the Commissions and GitMo related matters.

This would be a better practice, and IMHO shows the DOD Joint Service Committee on Military Justice how it ought to be done.

Military death penalty – Davila

March 9, 2010 | The Law Office of Philip D. Cave

The prosecution of SPC Ivette Davila, at Fort Lewis, will generate some interest; hers will be the first death penalty prosecution of a woman under the UCMJ.

Checking – has a woman ever been executed as a result of a court-martial in the United States? The answer is no under the UCMJ. The two most famous death penalty cases involving women were Kinsella v. Singleton, 361 U.S. 234 (1960), and Reid v. Covert, 354 U.S. 1 (1957). (These cases stood, until the recent change to Article 2, UCMJ, for the proposition that there was no court-martial jurisdiction over civilians except under limited circumstances. The constitutionality of the recent changes to Article 2, UCMJ, extending jurisdiction over civilians is yet to be tested.)

Noted authority on the UCMJ Frederick Bernays Wiener represented Mrs. Kinsella.