Court-Martial Trial Practice BlogLily Gordon, Fort Benning hustles to adapt to JAG office loss – this past Monday, apparently due to arson, Ledger-enquirer.com, 17 July 2009.
No-one was injured.
This story appears in today’s Ledger-enquirer.com.
Benning JAG office arson.
Articles Posted in Up Periscope
Supreme Court schedule
The October SCOTUS oral argument scheduled for October 2009 has been released. There are several cases of potential interest to military justice practitioners.
Maryland v. Shatzer (08-680) — limits on police questioning after a suspect asks for a lawyer.
U.S. v. Stevens (08-769) — government power to criminalize videos and other depictions of animal cruelty. This is of especial interest because of the recent military case of a soldier involved in animal cruelty and potential recommendations of the Cox Commission for a specific offense under the UCMJ for animal cruelty.
PTSD?
GI Slaying Suspects Faced Heavy Combat
July 15, 2009
Associated Press
FORT CARSON, Colorado – Soldiers from a Colorado unit accused in nearly a dozen slayings since returning home – including a couple gunned down as they put up a garage sale sign – could be showing a hostility fueled by intense combat in Iraq, the military said Wednesday.
Notification under Vienna Convention
It’s been a while since this issue has come up, and it does come up every now and again in military cases – DoD has approximately 50,000 foreign nationals on active duty.
Some more fallout from the U.S. Supreme Court’s decision in Medellin v. Texas fell today from the California Supreme Court. The case is In re Martinez, S141480.
In its Avena decision, the International Court of Justice said that all that was required was a judicial determination of whether the defendant had suffered any prejudice from failure to notify the consulate upon arrest. Very few have, I believe. CJLF argued to the U.S. Supreme Court that Medellin had already received a (negative) judicial determination of prejudice, although the state court decision on that point was less than crystal clear. The Supreme Court decided not to rule on that basis, but noted the issue in a footnote.
In the California case, it is clear. Martinez raised the Vienna Convention claim in his first state habeas petition, and that petition was unambiguously denied on the merits, not procedural default. He has already received the determination the Avena decision says he should receive. President Bush’s memorandum saying the state courts should implement Avena would entitle him to no more, even if it were binding on the states, and Medellin holds it is not. Game over, says Cal. Supreme, in a unanimous decision by Justice Moreno.
/tip Crime&Consequences.
Commander publically discusses giving an Article 15
For those following the animal cruelty case at Fort Bliss, and also noting CAAFLogs reference to a potential new “charge” in the UCMJ of animal cruelty, here is a public discussion by the Fort Bliss garrision commander about his decision to issue an Article 15, UCMJ, punishment.
Fort Bliss Garrison Commander Col. Edward Manning talked to KFOX about the latest on the Frank Zimmerman case and his punishment.
As KFOX reported, Spc. Zimmerman who is charged with animal cruelty received an official reprimand by Manning, himself in April. Zimmerman is accused of stomping on the neck of his dog Tinkerbell and breaking his other dog, Wrigley’s, hind leg.
CAAF grant on a Walters issue
CAAF has granted review in United States v. Trew of this issue (this is a link to Trew’s discussion on CAAFLog and the NMCCA opinion) (and here is my earlier post):
WHETHER, IN LIGHT OF UNITED STATES v. WALTERS, 58 M.J. 391 (C.A.A.F. 2003) AND UNITED STATES v. SEIDER, 60 M.J. 36 (C.A.A.F. 2004), THE CHARGE AND SPECIFICATION MUST BE DISMISSED WITH PREJUDICE, BECAUSE THE LOWER COURT COULD NOT CONDUCT A PROPER APPELLATE REVIEW UNDER ARTICLE 66 AND DOUBLE JEOPARDY PREVENTS A REHEARING. SEE UNITED STATES v. WILSON __ M.J. ___ (C.A.A.F. 2009).
There has been quite a bit of “heated” discussion on CAAFLog about United States v. Wilson, and how the Walters issue in that case was resolved.
New CGCCA cases
United States v. Lindsey, the dishonorable failure to pay just debt case is now on line. While prosecution in this case seems reasonable, I’m always concerned when the military begins to act as a debt collection agency.
United States v. Daniel, is an unpublished opinion about admission without objection of a photograph.
Appellant now contends that Special Agent Green could not properly authenticate the photographs because he had no personal knowledge that they were taken from appellant’s computer, and could not identify the photographs as depicting the assault1 because he only heard SC talk about it, yet SC was passed out when the photographs were taken. He also notes that there was no foundation laid as to how the photographs came into CGIS’s possession.
New CAAF opinions.
United States v. Marshall, __ M.J. ___ (C.A.A.F. 2009).
This is a fatal variance case.
Appellant pled not guilty to escaping from the custody of Captain (CPT) Kreitman but was convicted, by exceptions and substitutions, of escaping from the custody of Staff Sergeant (SSG) Fleming. We granted review to consider whether the military judge’s findings created a fatal variance. We hold that it did.
Justice noir
For those of us who do read crime noir novels for entertainment, here is an interesting perspective. This all quote from Law.com: Legal Blog Watch.
Cloak-and-Dagger Justice
Perhaps it was a dark and stormy night when Scott W. Stucky was sworn in as a judge of the U.S. Court of Appeals for the Armed Forces. It took place on a rain-slicked pier outside an abandoned warehouse. He wore a trenchcoat and a fedora with its brim turned down. A mysterious woman looked on, dressed all in black. The man who presided stood in a shadow, a diamond ear-stud reflecting a distant light.
Or perhaps not. But as Michael Doyle observes at the blog Suits & Sentences, Stucky is the latest federal judge to write an opinion in the hard-boiled noir style epitomized by authors such as Dashiell Hammett and Raymond Chandler. "There was something odd about the electric razor in the bathroom," the opinion begins. "[She] typically changed clothes in the bathroom and for the past year had felt that she was being watched, a feeling that she attributed to paranoia."