Court-Martial Military Defense Under UCMJ

There appears to be a split shaping up between the circuits over the use of a surrogate to introduce autopsy reports.  Thanks to federalevidence.com here are the basics.

[Are] autopsy reports are admissible under the Confrontation Clause. The First Circuit has held that autopsy reports may be admitted without the testimony of the report author consistent with the Confrontation Clause. See United States v. Feliz, 467 F.3d 227, 237 (2d Cir. 2006) (autopsy reports as public reports were “not subject to the strictures of the Confrontation Clause”) [Note, case decided before Melendez-Diaz]; United States v. De La Cruz, 514 F.3d 121, 133-34 (1st Cir. 2008) [n.1] (“An autopsy report is made in the ordinary course of business by a medical examiner who is required by law to memorialize what he or she saw and did during an autopsy. An autopsy report thus involves, in principal part, a careful and contemporaneous reporting of a series of steps taken and facts found by a medical examiner during an autopsy. Such a report is, we conclude, in the nature of a business record, and business records are expressly excluded from the reach of Crawford.”), cert. denied, 129 S.Ct. 2858 (2009); see also First Circuit Identifies And Discusses Crawford Confrontation Clause Open Issues.

With that FE provides the case that sets the conflict, and it’s a surrogate case.

Eleventh Circuit reverses based on the introduction of autopsy report prepared by non-testifying witnesses and the testimony of a medical examiner who had not performed the autopsy; the chief medical examiner could not provide surrogate testimony for non-testifying examiners who prepared autopsy reports, in United States v. Ignasiak, _ F.3d _ (11th Cir. Jan. 19, 2012) (Nos. 09-10596, 09-160).

Here’s a phrase we need to hear (as well as others) in attempted surrogate cases:  is the opinion a “truly independent expert opinion.” Ignasiak, _ F.3d at _ n.21.  Or another way to say that might be, ‘can any of the drug lab experts “truly” be “independent” when testifying about events in their own lab?’

Does United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), resolve the medical examiner surrogate issue?

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Cert. was denied in de la Cruz, De La Cruz v. United States, 129 S.Ct. 2858 (2009).  Here is the SG’s brief in opposition.

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Oooops, I meant H.M. the Queen v. Delisle.

The Winnipeg Free Press reports on a cross-border military justice case.  It begins,

Putting an accused navy spy on trial represents a potential legal and intelligence nightmare for the . . . government, one where it will have to resist the temptation to dispense justice in secret, say experts.

[T]he Crown will have a significant arsenal of tools to bar the door to the public and media, but at the same time there will be pressure on prosecutors to hold as much of the proceedings as possible in open court.

. . . .

"In trials like this in the U.S., a lot of the evidence has been in camera."

In looking for some Canadian MJ’s I came across this interesting court-martial related case, Canada v. Canada, 2006 FC 1532, [2007] 3 F.C.R. D-1 December 21, 2006.

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Seaman Apprentice Kevin Razzoli?  Well those of us with clients in confinement know they have a lot of time to ponder their cases.  He was sentenced to 25 years confinement in 1987 for attempted murder.  You’d think he’d  be on parole by now.  But  . . .  The lesson for current clients is that to get parole one point is to have a good prison record.

So, in 1989, the Navy-Marine Corps Court of Military Review affirmed his conviction and sentence in a short per curiam opinion addressing his speedy trial issue.  United States v. Razzoli, NMCM 88-1220 (N.M.C.M.R. July 14, 1989), pet. denied 29 M.J. 314 (C.M.A. 1989).

Not satisfied with the results in the military system, he began filing habeas corpus petitions and other lawsuits.  So much so that,

A review of the federal courts’ PACER Case Locator service reveals that Petitioner is a serial filer of habeas corpus petitions in several federal courts. Some of his litigation history was summarized in Razzoli v. U.S. Parole Commission, No. 10-cv-1842, 210 WL 4622178, at *1-3 (E.D.N.Y. Nov. 5, 2010). He also has filed over twenty civil rights lawsuits against federal law enforcement agencies and officers since his military conviction for attempted murder in 1987. See, e.g., Razzoli v. City of New York, 08-cv-4586 (S.D.N.Y.), Order of Dismissal, dated May 19, 2008, at 7-8 (noting that this was the plaintiff’s fourth complaint since February 2005, the judge stated: "I hereby warn plaintiff that the further filing of non-meritorious cases may result in the issuance of an Order barring plaintiff from filing any further actions without prior leave of the Court.").

Razzoli v. U. S. Parole Commission, et al., Civ. Action 11-7227, n.1  (DC, NJ Jan., 11, 2012).  In this most recent litigation the petition was rejected for failure to pay the $5.00 filing fee or present an acceptable request to proceed in forma pauperis.  The court indicated that his petition was “unintelligible as to the grounds,” and that any new one should “clearly stat[e] the grounds.”

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Registration for the Virginia CLE 42nd Criminal Law Seminar, is now online.  You can attend live on 3 or 10 February.  Note, VA will begin requiring a number of hours be live.  They are cutting back on getting the full 12 online.

The USCAAF Judicial Conference is scheduled for 7 – 8 March 2012.  Hopefully they will give the option of receiving hard copies of handouts so that VA lawyers can get CLE credit.   The VA Bar has been giving problems over the last few years about credit for the conference based on a lack of handouts.

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The NMCCA continues to pump out the Fosler cases with affirmances.

But today there’s an interesting opinion in a urinalysis case.  United States v. Alicea  It’s unpublished. It’s about the use of documents and testimony from an expert about a urine sample tested by the Navy drug lab.

NMCCA found the military judge abused his discretion, and the error was not harmless beyond reasonable doubt.

The case was tried in April 2011, so it’s somewhat surprising.  Anyway, worth the read.

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Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights.

She has this interesting post, "Why Can’t Jurors Distinguish “Knowing” From “Reckless” Misconduct?”

Recently, The National Law Journal carried a story about an important gap that has emerged in jurors’ ability to understand the criminal law.  According to the original study, described in the article “Sorting Guilty Minds” in the NYU Law Review, jurors have a difficult time distinguishing between two of the culpable mental states under which perpetrators commit crimes:  “knowledge” and “recklessness.”  In this column, I will offer an account of jurors’ difficulties that locates the problem in the ambiguity of the criminal law itself, rather than in the thinking processes of fact-finders.

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Fayobserver reports that as of 09012012:  Nearly 11 weeks after a panel of judges heard arguments in Timothy Hennis’ appeal, a decision still has not been made.

El Paso Times reports:  A Beaumont laboratory technician was confronted on Tuesday by a teenage family member who said he had sexually abused her since she was 5 years old.  Sgt. Michael Robertson’s court-martial on charges of sodomy and sexual assault started Tuesday at Fort Bliss. The sodomy charge resulted from an incident in which Robertson allegedly forced his accuser to perform oral sex when she was 5. Robertson pleaded not guilty to all charges and specifications. He faces a life sentence if convicted on the sodomy charge

L.A. Now reports on 09012012:  The court martial at Camp Pendleton of a Marine staff sergeant accused in the deaths of 24 Iraqis in Haditha in 2005 began Monday with sharply contrasting views of the defendant.  While CBS News reports:  A Marine sergeant charged in the biggest criminal case against U.S. troops in the Iraq war made a series of fatal assumptions and lost control of himself when he and his squad killed 24 Iraqis, including unarmed women and children, a military prosecutor said Monday.

Navy Times reports:  The U.S. Coast Guard Academy said Monday that it is kicking out 14 cadets for using synthetic marijuana, a forbidden substance that has stirred concern across the U.S. military.

KCAW reports: That [the Article 32, UCMJ,] investigating officer has recommended dropping the charges against the sole survivor of a 2010 Coast Guard helicopter crash that killed three crewmen from Air Station Sitka.

The News Tribune reports:

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(Sans TinyURL)

Smith v. Cain is of importance to military practitioners because of the always issue of access to “CID” notes and case files.  This is a case about discovery. Apparently the investigators’ notes contained conflicting information to that testified to by the star prosecution witness.

The Supremes issued an opinion in Smith v. Cain this morning – 8-1, Thomas dissenting.

Smith requested that his conviction be vacated, arguing inter alia, that the prosecution’s failure to disclose Ronquillo’s notes violated this Court’s decision in Brady v. Maryland, 373 U. S. 83 (1963).  The state trial court rejected Smith’s  Brady claim, and the Louisiana Court of Appeal and Louisiana Supreme Court denied review.  We granted certiorari, 564 U. S. ___ (2011), and now reverse. . . .

The State does not dispute that Boatner’s statements in Ronquillo’s notes were favorable to Smith and that those statements were not disclosed to him. The sole question before us is thus whether Boatner’s statements were material to the determination of Smith’s guilt. We have explained that “evidence is ‘material’ within the meaning of  Brady [on appeal] when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.”  Cone  v.  Bell, 556 U. S. 449, 469–470 (2009).  A reasonable probability does not mean that the defendant “would more likely than not have received a different verdict with the evidence,” only that the likelihood of a different result is great enough to “undermine[] confidence in the outcome of the trial.” Kyles  v. Whitley, 514 U. S. 419, 434 (1995) (internal quotation marks omitted).  (Emphasis added.)

We have observed that evidence impeaching an eyewitness may not be material if the State’s other evidence is strong enough to sustain confidence in the verdict. See United States v. Agurs, 427 U. S. 97, 112–113, and n. 21 (1976). That is not the case here.  Boatner’s testimony was the  only evidence linking Smith to the crime.

Here is a  link to SCOTUSBlog case materials.

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Week Ahead.

LA Times reports that a panel of two officers and four enlisted have been selected for United States v. Wuterich.  Merits to begin Monday.

Week Behind.

Ledger-Enquirer reports:  One of five soldiers accused in the downtown beating of a former soldier was acquitted Wednesday during a court martial at Fort Benning.

United States v. Wuterich is underway.

Military.com reports:  The Navy announced another 2011 firing this week, bringing the tally of top leaders fired last year to 35, 27 of which were commanding or executive officers. The sacking spree sunk a 2003 record of 23 such firings.

Air Force Times reports:  Three cadets at the Air Force Academy have been charged in separate cases involving sexual misconduct, the service academy announced Thursday.

Outside the Wire reports:  The soldier whose rape case is largely responsible for the curfew for American service members in South Korea is asking for a reduction in his 10-year sentence, Stripes reports.

This week,  U.S. Forces Korea announced that the curfew will continue indefinitely and, starting Saturday, the hours will be revised to 1 to 5 a.m. every day, Stripes reports.  The move comes after Gen. James D. Thurman, USFK commander, twice set deadlines for the curfew and then extended it.

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