Court-Martial Trial Practice

Prof. Colin Miller notes that prosecutor discipline for Brady violations is “rarer than steak tartare.”

He reports to case of a NY prosecutor suspended for two-years because of significant Brady violations.

On May 9, 2017, the former homicide prosecutor was caught withholding exculpatory material from Messiah Booker, a man charged with first-degree murder who had maintained his innocence. Mr. Booker was arrested and spent more than 18 months in jail awaiting trial before his defense lawyer discovered that Mr. Kurtzrock had altered hundreds of pages of police records to remove a wealth of exculpatory information, including evidence pointing to another suspect he knew Mr. Booker’s lawyer had been investigating. The prosecutor had also removed the covers of two police notebooks to make it look like his altered versions of the documents were the originals.

The Peace and Justice Initiative describes command responsibility as,

“Command or superior responsibility” is often misunderstood. First, it is not a form of objective liability whereby a superior could be held criminally responsible for crimes committed by subordinates of the accused regardless of his conduct and regardless of what his knowledge of these crimes. Nor is it a form of complicity whereby the superior is held criminally responsible for some sort of assistance that he has given to the principal perpetrators. Instead, superior responsibility is a form of responsibility for omission to act: a superior may be held criminally responsible under that doctrine where, despite his awareness of the crimes of subordinates, he culpably fails to fulfill his duties to prevent and punish these crimes.

Are you unsure if President Trump violated the concept of command responsibility when he granted pardons to servicemembers accused of war crimes? Stuart Ford is not sure either as he surveys the question in Has President Trump Committed a War Crime by Pardoning War Criminals? 35 AM. U. INT’L L. REV. 757 (2020).

United States v. Jones., NMCCA 23 December 2020.

Appellant challenged the providence of his guilty pleas, alleged an abuse of discretion with the admission of various sentencing exhibits; and (again) an error in the entry of judgement. The findings and sentence were affirmed, but an amended EoJ was ordered.

The issue appears to come from Appellant’s inability to remember the exact places where his distribution and use of controlled substances happened and to whom. The NMCCA found that where and to whom is not a substantial enough inconsistency with the charged offense because those “facts” are not elements of the offenses. The NMCCA did impliedly suggest that the various “inconsistencies” could have been resolved by the MJ asking more direct and specific follow-up questions.

Stuart Ford’s article, Has President Trump Committed a War Crime by Pardoning War Criminals? 35 AM. U. INT’L. L. REV. 757 (2020) seeks to answer that from an international law perspective through the lens of command responsibility.

Command responsibility generally has two sides–the duty to prevent and the duty to punish.

One interesting question is whether clemency after trial would be a war crime under the author’s theory. For example, Behenna served a significant period of confinement and there were legitimate concerns about some Brady-plus issues. It does seem the author considers a preemptive pardon a potential war crime–pretrial for example.

The military trial judge erred in concluding that the search authorization required AFOSI complete information to determine probable cause for defendant’s DNA in a sex assault case. It’s not. Just because there were differing versions of how dressed the victim was when she woke up doesn’t make the authorization without probable cause. After the first DNA search was [erroneously] suppressed, the independent source doctrine permitted a second search authorization with more information backing it up. United States v. Garcia, 2020 CAAF LEXIS 706 (C.A.A.F. Dec. 9, 2020): [1]

It is repugnant to the purpose and principles of the Fourth Amendment for an agent of the government to “knowingly and intentionally, or with reckless disregard for the truth” include in an affidavit false information that is material to a search authorization request, Franks v. Delaware, 438 U.S. 154, 155 (1978), or to make material omissions “that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate,” United States v. Mason, 59 M.J. 416, 422 (C.A.A.F. 2004) (emphasis omitted) (internal quotation marks omitted) (quoting United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990)). This proposition should be self-evident. And yet, the Government’s troubling conduct in the instant case compels this Court to underscore this essential point from the outset of this opinion.

As Monty Python might say: Never Mind.

The head of Hill Air Force Base’s Equal Opportunity Office has been reassigned after failing to take complaints of sexual harassment seriously.

As part of the investigation, it appears

two attorneys were referred to the Professional Responsibility Program for the Air Force Judge Advocate General Corps. That office has initiated a separate inquiry into the allegations of unprofessional conduct. (Not clear if they are uniform or civilian attorneys.)

Kentucky has a similar variant of Fed. R. Evid. 804(b)(1).

In its recent opinion in Estate of Karen Burden v. Hardison, 2020 WL 7640000 (Ky.App. 2000), the Court of Appeals of Kentucky dealt with one element of this exception and left another element for another day–says Prof. Colin Miller.

The trial court in Hardison had denied use of “videotaped statement by Karen taken under oath on November 18, 2013, prior to the filing of the complaint and Karen’s death.” The appellate court determined this was not error.

The High Court of Denmark found that the defendant was guilty of having tried to abuse his position to get his then-girlfriend and later spouse admitted to a highly coveted leadership training within the Armed Forces. He was also found guilty of attempting to abuse his position by trying to persuade a colonel to hire his girlfriend in a vacant position as a major. In addition, the defendant was found guilty of gross negligence and breach of his duty of confidentiality by giving the girlfriend access to the inbox of the defendant’s official e-mail and by forwarding emails of a confidential nature to her on matters that did not concern her.

To show the risks of appeal in some countries, the High Court increased the confinement from three to four months.

Looks like the ACCA website has been redesigned and reorganized. They now have a page for summary affirmances and a “Appellate Library,” and it looks as if this is where briefs will be found. ACCA had earlier announced it would do this. They now list “short form affirmances” in a separate list (in the past we have had to assume a summary affirmance on cases with no written opinion). The NMCCA and AFCCA post summary affirmances along with all other decisions.

The CGCCA posts appellate briefs: https://www.uscg.mil/Resources/Legal/Court-of-Criminal-Appeals/Court-of-Criminal-Appeals-Appellate-Briefs/

The CAAF posts appellate briefs of cases in which there is a grant and oral argument.

Standage v. Braithwaite, No. ELH-20-2830, (D.C. MD Dec. 22, 2020). This is the lawsuit filed by Midshipman Standage t declaratory and injunctive relief regarding his recommended disenrollment from the Naval Academy. The suit was dismissed without prejudice as not yet ripe.

Standage was the subject of Academy disciplinary actions because he was accused of sending “racist” and “insensitive” tweets about BLM and the various “riots’ around the country. The evidence is a little unclear but it appears he never was identified as a midshipman or member of the USNA.

He claims, basically that the actions violated the APA and his First Amendment rights. Reference is made in the opinion that a midshipman’s speech is not completely restricted.