Court-Martial Trial Practice Blog

An early war crime trial?

September 29, 2010 | The Law Office of Philip D. Cave

Guenal Mettraux, A Little Known Case from the American Civil War: The War Crimes Trial of Major General John H. Gee, 8 J. Int. Crim. Justice, 1059.

Major John Henry Gee was the commandant of the Confederate prison at Salisbury, North Carolina from 1864 until 1865. During his tenure, thousands of Union prisoners of war died of starvation and diseases or were shot when attempting to escape. Shortly after the end of hostilities, Major Gee was arrested, charged with two counts of violations of the laws of war and brought before a military commission to be tried. The trial of Major Gee is one of the first recorded trials for war crimes and a rare early example of domestic prosecution of an enemy fellow-national for what was effectively an international crime, in a war in which his side had been vanquished. Unlike the war crimes trial of Henry Wirz, commandant of Andersonville prison during the American Civil War, little attention has been paid to this important precedent.

Msr. Mettraux is described as:

Peacekeeping and sex offenses

September 29, 2010 | The Law Office of Philip D. Cave

Melanie O’Brien’s thesis for her PhD at Nottingham Univ. is online.

National & International Criminal Jurisdiction Over United Nations Peacekeeping Personnel for Gender-Based Crimes Against Women.

This thesis seeks to determine the most effective jurisdiction for criminal accountability for UN peacekeeping personnel who engage in sexual exploitation and abuse of women, and other conduct amounting to violence against women. As criminalisation is sought as the appropriate method of prevention and punishment of such conduct, it is first examined why criminalisation is necessary. The impact of sexual exploitation and abuse (SEA) on women in the territories in which peace operations are located is detailed as harms in the form of violations of the rights of these women. Alternatives to criminal sanctions are then considered, in particular the actions of the UN towards prevention and prohibition of SEA. While such regulations are necessary, they are ultimately inadequate in preventing and punishing SEA. Included is an assessment of the Draft Convention on Criminal Accountability of UN Officials and Experts on Mission, the adoption of which would support criminalisation.

Bring lawyers, guns, and money

September 29, 2010 | The Law Office of Philip D. Cave

is the title of a pretty good song.

Huffington Post uses this theme as part of a commentary on tensions created by having a lot of civilian contractors deployed. There are some interesting (unattributed) quotes from some JA’s who have been there, done that.

SCOTUSBlog observes

September 29, 2010 | The Law Office of Philip D. Cave

Along with the list of cert. grants, the Court announced a new policy on releasing audio recordings of oral arguments. The Court will now release such recordings at the end of each argument week, much earlier than the current practice for all but a handful of particularly high-profile cases. As Lyle Denniston reports for SCOTUSblog, the same-day release of high-profile argument recordings will be discontinued under the new policy. The Washington Post, the Blog of LegalTimes, NPR’s The Two-Way blog, Broadcasting & Cable, the Associated Press (via the Washington Post), and Jonathan Adler of the Volokh Conspiracy all take note of the policy change. While C-SPAN’s president is not completely satisfied with the shift, the Volokh Conspiracy’s Orin Kerr is “delighted” that “Supreme Court geeks” will be able to more readily recognize “the flavor and tone of the questions.”

Bullcoming sitrep 1

September 29, 2010 | The Law Office of Philip D. Cave

Here is an observation by federalevidence.com:

One issue raised by the new case concerns whether a majority of the Court still supports the Confrontation Clause analysis established under Crawford v. Washington in 2004, and Melendez-Diaz v. Massachusetts in 2009. Two Justices who voted in the majority (John Paul Stevens and David H. Souter) have since retired. The five majority votes in Melendez-Diaz v. Massachusetts included author Justice Antonin Scalia and Justices John Paul Stevens, David H. Souter, Clarence Thomas (who also filed a concurring opinion), and Ruth Bader Ginsburg. The four dissenting included Justice Kennedy, who authored the dissent, and Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Samuel Anthony Alito, Jr.. It is unclear whether a new majority will be formed on the Confrontation Clause analysis and how the newest Justices (Sonia Sotomayor and Elena Kagan) will vote on Confrontation Clause issues.

LTC Lakin sitrep

September 29, 2010 | The Law Office of Philip D. Cave

Humor in military lawyering is good. Humor is good. Standby for a comment from DMLHS tonight.

In thinking about why the case would be delayed to 3 November 2010 there were all kinds of ideas floating around, some ideas being of a conspiratorial nature. I had missed the piece noted by Reality Check (thanks!). Anyway, I thought the first place to go would be be docket – but first a digression on the piece of reporting Reality Check caught.

The military judge did delay the start of the trial for a month to give the defense more time to ask the court of appeals for help. (WUSA9 — http://goo.gl/Am1Q)

Post-trial and SOR

September 29, 2010 | The Law Office of Philip D. Cave

Daily Commercial reports:

To police Chief Ed Nathanson, it doesn’t matter where you’ve been convicted as a sex offender or predator.

It only matters that you’ve been convicted.

Up periscope

September 28, 2010 | The Law Office of Philip D. Cave

Washington Post reports:

A U.S. soldier in Iraqis accused of fatally shooting two other American service members and injuring a third after an argument in Iraq’s Anbar province last week, the military said.

WRAL.com reports:

Post-trial

September 28, 2010 | The Law Office of Philip D. Cave

Army Times reports.

A regional prison is opening at Fort Leavenworth, combining the operations of military prisons elsewhere in the United States.

The Joint Regional Confinement Facility will be operated by the Army Corrections Command. It’s located on the northeast Kansas post near the U.S. Disciplinary Barracks, the military’s maximum-security prison.

Another potential SCOTUS grant

September 28, 2010 | The Law Office of Philip D. Cave

The U. S. Supreme Court has granted certiorari in Kentucky v. King.

QUESTION PRESENTED:
Police officers entered an apartment building in hot pursuit of a person who sold crack cocaine to an undercover informant. They heard a door slam, but were not certain which of two apartments the trafficker fled into. A strong odor of marijuana emanated from one of the doors, which prompted the officers to believe the trafficker had fled into that apartment. The officers knocked on the door. They then heard noises which indicated that physical evidence was being destroyed. The officers entered the
apartment and found large quantities of drugs. The Kentucky Supreme Court held that this evidence should have been suppressed, ruling that (1) the exigent circumstances exception to the warrant requirement did not apply because the officers created the exigency by knocking on the door, and (2) the hot pursuit exception to the warrant requirement did not apply because the suspect was not aware he was being pursued. The two questions presented are: 1. When does lawful police action impermissibly "create" exigent circumstances which preclude warrantless entry; and which of the five tests currently being used by the United States Courts of Appeals is proper to determine when impermissibly created exigent circumstances exist? 2. ~~Does the hot pursuit exception to the warrant requirement apply only~~

Thanks to crimeandconsequences.