UCMJ Tag Archives — Page 49 of 51 — Court-Martial Trial Practice Blog

Flawed sex assault program

December 4, 2009 | The Law Office of Philip D. Cave

A DoD report is critical of progress regarding sexual assault in the military. Overall the report seems a fair response. This part however is troubling:

Included in the task force’s 30 primary recommendations are a number of actions for helping victims of sexual assault, such as a suggestion that legislation be enacted requiring the Uniform Code of Military Justice to include a comprehensive provision on privileged communications between victims of sexual assault and victim’s advocates.

The task force interviewed service members who reported being re-victimized when their previous statements to medical personnel and victim’s advocates were used to cross-examine them in courts-martial.

Prosecutors still playing games with discovery

December 4, 2009 | The Law Office of Philip D. Cave

United States v. Mott, once again, explores the prosecution obligation to disclose favorable evidence to the defense at court-martial. In this case, the prosecutions own expert agreed with the defense theory as to the accused’s mental status. None of this was disclosed to the defense.

In the instant case, this first step of analysis need not detain us. The Government concedes that their expert, Dr. Hagan, verbally informed the trial counsel that he agreed with the defense expert that the appellant suffered from a severe mental disease and that said disease caused the appellant not to understand the wrongfulness of his actions at the time of the charged misconduct. We have no doubt that knowledge of the existence of a Government medical expert whose professional opinion wholly supported the opinion of the defense expert is a fact both favorable to the appellant and material to an assessment of his guilt and/or punishment. We find, therefore, that the trial counsel’s failure to disclose the expert medical opinion of their expert, Dr. Hagan, was error.

“[N]eed not detain,” because it is patently obvious the information is discoverable. This case is from RLSO Norfolk. Doesn’t surprise me in the least.

Catching up on Major Hasan news

December 4, 2009 | The Law Office of Philip D. Cave

Sane or insane, Major Hasan’s mental state before and during his alleged offenses will be raised in his court-martial. Death penalty cases are different so sayeth they U.S. Supreme Court. Everything must be raised that could possibly have some impact on either the finding of guilt to a capital charge or in sentencing. The Supreme Court decision in Porter v. McCollum makes it clear that failure to raise mental health issues, including PTSD, will likely lead to a finding of ineffective assistance of counsel. A distinction can be argued between Porter and Hasan — one was in combat, the other about to get into vicarious PTSD issues. But any competent attorney for Major Hasan has to consider the mental health issues as vital to the defense presentation.

Been gone for a family emergency so I won’t go too far back. But . . .

DoD reports that:

It was love

December 4, 2009 | The Law Office of Philip D. Cave

Naplesnews.com reports that:

The trial counsel in United States v. Piotrowski, ARMY 20010721, 2006 CCA LEXIS 487 (A. Ct. Crim. App. January 31, 2006) pet. denied 64 M.J. 430 (C.A.A.F. 2007).

He smashes into a car, killing a 24-year-old woman who is pregnant with her first child.

Fort Lewis murder case

December 4, 2009 | The Law Office of Philip D. Cave

Seattleweekly.com reports:

Having now admitted to murder, Fort Lewis Spc. Ivette Davila today awaits word on whether she will face the death penalty for it.

Davila, 23, an Army chemical specialist, is charged with killing Staff Sgt. Timothy Miller and Sgt. Randi Miller in their Parkland home March 2, 2008, soaking their bodies in muriatic acid and kidnapping their 7-month-old daughter.

Chessani board

December 4, 2009 | The Law Office of Philip D. Cave

Stars & Stripes reports:

A prosecutor has argued that a Marine Corps officer facing demotion failed to fully disclose and investigate the killing of two dozen Iraqi men, women and children by Marines under his command.

But a defense attorney called the retired officer a highly qualified leader who took the fall amid political pressure fueled by inaccurate media reports of what was a chaotic firefight with insurgents and not a war crime.

More “incidents”

November 20, 2009 | The Law Office of Philip D. Cave

I just commented on two incidents involving suspicious actions by soldiers; one at Fort Campbell and one near Fort Leonard Wood.

Army Times now reports:

A box of hollow-point bullets and an anonymous note threatening an incident like the one at Fort Hood, Texas, were discovered Thursday at Fort Benning, Ga., sparking a criminal investigation and greater police presence, a witness told Army Times.According to a witness at the scene, a box of 20 hollow-point shells and a handwritten note were found in the motor pool area between 1st Battalion and 2nd Battalion, 29th Infantry, under the 197th Infantry Training Brigade.“The note said ‘tell the commanding general to call off all charges or there will be a re-enactment of Fort Hood,’ ” the witness told Army Times. He spoke on condition he wouldn’t be identified.

UP: News roundup

November 20, 2009 | The Law Office of Philip D. Cave

Army Times reports that Major Hasan has had or is about to have a pretrial confinement hearing at Fort Hood. A hearing is required within certain time periods under R.C.M. 305. R.C.M. 305 is a regulation in the manual for courts-martial that implements due process for someone detained for a crime. The military does not have bail. The person is either detained or released into restriction to base or personal recognizance during the time of the court-martial. It is unlikely that Major Hasan will be released onto Fort Hood. The issue appears to be whether he is physically fit for confinement as certified by a medical doctor.

Army Times and AP report that an AWOL soldier wins stay of Canadian deportation.

Canada’s Federal Court says the country’s refugee board must reconsider the case of a lesbian who deserted the U.S. Army.

When investigators talk with Major Hasan we’ll know more

November 16, 2009 | The Law Office of Philip D. Cave

And pigs have wings and can fly.

The media continues to make the comment that investigators are waiting to talk with Major Hasan, at Fort Hood, and once they do we’ll know more about his motives. Huh? We’ll find out at court-martial what each party is suggesting are the reasons and motives, but unlikely before then, except for the continual extra-judicial statements by people close to the investigation who have been told not to talk about it but are quite happy to without a name.

Major Hasan asked for counsel, he’s got counsel; he’s a represented accused; charges are preferred; and he’s apparently in custody. So . . .

Is this unlawful influence, or just a bad idea, or . . . ?

November 13, 2009 | The Law Office of Philip D. Cave

How far should members of congress or the President, or anyone, get involved in how to prosecute Major Hasan for his acts at Fort Hood. Certainly the victims are entitled to be involved and are required to be through the Department of Defense Victim-Witness Assistance Program. The program does not give politicians or government officials a right to be involved.

Risch Urges Additional Murder Charge in Fort Hood Slayings

This article reports that at least two Congress people are getting involved seeking to influence the prosecution of Major Hasan. Are they creating fodder for various defense motions, making the prosecutions job a political one, or just plain bad form. The talk is about Article 119a, UCMJ, a product of the Unborn Victims of Violence Act (UVVA), which is an outgrowth of special interests who convinced Congress in 2004 that a fetus is a child. It’s a political issue, it was a political hot-potato then, and potentially still is, albeit there is a statute in place. I guess we should see what other pressures and special interests can get on board to help the prosecutors out, and possibly the defense in the process – I’m sure both sides will be happy for the extra help.