UCMJ Tag Archives — Page 50 of 51 — Court-Martial Trial Practice Blog

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.

AF annual drug warning

November 12, 2009 | The Law Office of Philip D. Cave

I’m not sure why, but it seems the Air Force must have a checklist of annual warnings. The official website makes one about prescription drugs, entitled: Prescription meds: Proceed with caution. The caution advises that misuse of prescription medications can result in disciplinary action, including court-martial.

When Airmen ignore inspecting their medicine cabinets they risk possible damage to their careers and, more importantly, can jeopardize their health.

This becomes a problem later if Airmen take prescribed medications after the prescription has expired.

Meteor burns out

November 11, 2009 | The Law Office of Philip D. Cave

WESH2.com reports:

A former astronaut pleaded to a lesser charge and avoided jail time for attacking a romantic rival in Orlando on Tuesday, but she could still face military prosecution.

Navy captain Nowak will be awaiting a letter from the Chief of Naval Personnel (connected with show-cause board actions), or the Secretary of the Navy (authorizing prosecution at court-martial). If she is allowed to retire then there will be a retirement grade determination for retirement as a commander (O-5).

Military insanity defense – Part III

November 11, 2009 | The Law Office of Philip D. Cave

If Major Hasan raises an insanity defense for his acts at Fort Hood, how might the defense actually work if at all.

Presumably he will present a combination of witnesses and documents. The media is reporting that prior to reporting to Fort Hood Major Hasan had “problems” so there will be witnesses to odd or strange behavior; there will be witnesses to the nature of his work and whether he could suffer vicarious traumatization; and there will be other witnesses to how he behaved. Then there may well be psychological testimony.

Here is a link to the Digest for the Court of Appeals for the Armed Forces (CAAF): “Core Criminal Law Subjects: Defenses: Lack of Mental Responsibility.”

Military insanity defense – Part II

November 11, 2009 | The Law Office of Philip D. Cave

In Part I, I briefly outlined the formal examination process prior to presenting an insanity/lack of mental responsibility defense. Now here is some information on the “law” or legal standard for an insanity defense. This is the defense that Major Hasan and his lawyers are going to have to consider for his actions at Fort Hood. The outlines can be found in Rule for Courts-Martial (RCM) 916(k).

You can immediately see why PTSD might not be sufficient of a mental health issue to be a defense rather than mitigation, because:

Military insanity defense – Part I

November 11, 2009 | The Law Office of Philip D. Cave

The military (insanity) lack of mental responsibility defense is set out in several places relevant to Major Hasan and the events at Fort Hood. The first step that should be taken by a prudent convening authority in this case is to order a mental examination under R.C.M. 706, as soon as Major Hasan is medically fit. Major Hasan and his counsel could arrange for a private examination at the major’s own expense. But should they attempt to put on an insanity/lack of mental responsibility defense the prosecution will certainly persuade the military judge to order a government examination.

There are two reports: the first is a short form with the answers to the basic questions. The short form is given to the commander at Fort Hood, his legal advisor, the prosecution, and the military judge. A long and detailed report is given only to the defense. Thus the examination and a large part of the work is privileged. Mil. R. Evid. 302 sets out the privileged nature of the examination, and the exceptions. The defense becomes the gatekeeper of the report. Should the defense seek to put on a lack of mental responsibility (insanity) defense the report may well have to be disclosed. Should the examination find the major currently incompetent, then he’s off to the federal confinement facility at Butner, NC, under Article 76b, UCMJ. There is currently one service-member at Butner under Article 76b.

Toobin on toolong

November 11, 2009 | The Law Office of Philip D. Cave

CNN Justice reports:

Toobin: Cabinet members may end up negotiating which legal system will try Army Maj. Nidal Malik Hasan, the suspect in last week’s mass shooting at Fort Hood in Texas, CNN senior legal analyst Jeffrey Toobin said Tuesday.

CNN: Would the charges be the same in either case?

It’s all Greek to me

November 11, 2009 | The Law Office of Philip D. Cave

Military.com reports:

A Marine reservist accused of attacking a Greek Orthodox priest with a tire iron after apparently calling him a terrorist was actually defending himself after being sexually attacked by the cleric, his defense attorney said Tuesday.

Tampa Police report offered a far different account, saying Marakis was lost when he followed Bruce into the garage and asked for help, then was struck with the tire iron and chased several blocks. When officers arrived, Bruce called Marakis a terrorist and said the priest had shouted "Allahu akbar!" — Arabic for "God is great."

Another Stolen Valor Act prosecution

November 11, 2009 | The Law Office of Philip D. Cave

CNN reports:

California man is facing a criminal charge for wearing numerous Navy medals despite the fact he never served in the military, federal prosecutors said Wednesday.
A witness “saw Burton wearing a Marine Corps uniform displaying the rank of lieutenant colonel, along with the Navy Cross, the Purple Heart and the Bronze Star[.]

Davis Montham airman not guilty in homicide case

November 11, 2009 | The Law Office of Philip D. Cave

The azstarnet reports:

A Davis-Monthan airman was acquitted Tuesday in the slaying of another airman in 2007 during a south-side house party, an official said.

A court martial panel found Senior Airman Philip Andre Howard not guilty of the June 2007 death of Airman 1st Class Brian Santos, said Capt. Stacie Shafran, a D-M spokeswoman.