Articles Posted in Up Periscope

JDNews reports:  In the wake of a high-profile hazing investigation involving a Marine suicide (in Afghanistan), a Camp Lejeune Marine is claiming he was falsely accused of a similar offense by a handful of junior troops.  Here is a link to a CAAFLog post about the suicide of Lew.  In a previous post on Lew:

A military hearing over whether three Hawaii-based Marines should go to trial for alleged hazing of a squad member who later killed himself in Afghanistan concluded Friday and a commander will now make a final determination.  Looks like some interesting litigation.

Naval Criminal Investigative Service agents didn’t read the Marines their rights when they took statements from the men about Lew’s death. The attorneys told Gardner they would object to the use of the statements in a court martial as a result.  NCIS agents told the hearing they didn’t read the Marines their rights because at the time the men were witnesses and not suspects.

Here is a link to the new Military Commissions website.

The Capital reports:  A midshipman accused of raping a classmate in her Bancroft Hall dorm room testified Tuesday that the sex was consensual and that he initially lied to investigators because he feared being kicked out of the Naval Academy.

Amanda Stairett of kcentv.com reports that:  COL David M. Benedek, a forensic psychiatrist, was the only defense witness to testify Tuesday [in the Stovall court-martial].

I have updated the list to indicate whether or not the appellant got a benefit on sentence as a result of the Fosler issue.

• United States v. Gibson, No. 201000669 (N.M.Ct.Crim.App., 30 Aug 2011) (convicted pursuant to pleas) – Affirmed, no sentence relief.
• United States v. Lonsford, No. 201100022 (N.M.Ct.Crim.App., 30 Aug 2011) (convicted contrary to pleas) – Reversed, sentence rehearing.

Military.com reports that:

The Obama administration’s handpicked choice to run prosecutions at the Guantanamo war crimes court is pledging a new era of transparency from the remote base, complete with near simultaneous transmissions of the proceedings to victims and reporters on U.S. soil.

Army Brig. Gen. Mark Martins made the disclosure in a profile published Sunday in the Weekly Standard that likened the West Point, Oxford and Harvard Law graduate to a James Bond-style problem solver. It also cast Martins as “The Rebrander” of the at-times denounced military commissions system, which Barack Obama scorned as a candidate and senator then reformed with Congress as president.

Larry Alexander,

Self-Defense

THE ROUTLEDGE COMPANION TO PHILOSOPHY OF LAW, Andrei Marmor, ed., Routledge Philosophy Companions, Forthcoming. San Diego Legal Studies Paper No. 11-065

kcentv.com reports that:  The court-martial for PFC Carl T. Stovall III began this morning on post with him pleading not guilty in a March 26, 2009, shooting that left a Hungarian man dead.

The Capital (HometownAnnapolis.com) reports:  Blue pants were a central piece of evidence Monday in the court-martial of a Naval Academy midshipman accused of raping a female classmate at the academy last year.

Colorado Springs Gazette reports that:  A former Fort Carson soldier convicted for his part in the 2007 shooting death of another soldier was denied parole on Thursday, according to the slain man’s mother.

postcrescent.com reports that:  U.S. Army military police have launched an investigation into the death of Staff Sgt. Garrick L. Eppinger Jr., his sisters told The Post-Crescent on Thursday. . . . [H]e was found dead Saturday at Bagram Airbase in eastern Afghanistan.

(h/t Outside the Wire)

CAAF remanded three more cases in light of Blazier and Sweeney.  Interestingly the CAAF had this “addition.”

¹ Nothing in this order is intended to limit the scope of the Court of Criminal Appeals’ review on remand, including, but not limited to, consideration of the issue raised in Judge Stucky’s separate opinion.

STUCKY, Judge (concurring in the result):

SCOTUSBlog notes the following criminal law cases to be argued at the Supreme Court on 4 October

Howes v. Fields,  "Custody" under Miranda.

Issue: Whether this Court’s clearly established precedent under 28 U.S.C. § 2254 holds that a prisoner is always "in custody" for purposes of Miranda any time that prisoner is isolated from the general prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances.

Well, is the 9th Circuit due for another pounding for their allegedly errant ways?  Courtesy of SCOTUSBlog here are two opportunities.

Title: Cavazos v. Smith
Docket: 10-1115
Issue(s): Did the Ninth Circuit exceed its authority under 28 U.S.C. § 2254(d) by granting relief for insufficient evidence based on its acceptance of the cause-of-death testimony of defense experts over the contrary opinion testimony of prosecution experts?

Certiorari stage documents:

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

The published opinion leads off with note that this is the second time they’d heard the case, the first before the Supremes remanded.  This is a shaken baby prosecution, and so should be of interest to military practitioners.