There are two decisions issued today of some relevance to military justice practitioners. One relates to Miranda and another to SORNA.
As to Berghuis v. Thompkins, Kent Scheidegger of crimeandconsequences blog says:
The Miranda rule remains intact in that the police must warn suspects of their rights and that an invocation of those rights by the suspect requires the police to stop questioning. Today’s decision involves what is needed to establish whether a suspect invoked or waived his rights.
Air Force Times reports that:
Inexperienced operators of a U.S. drone ignored or downplayed signs that Afghan civilians were in a convoy blasted in a deadly American missile attack earlier this year, a military report released Saturday said.
Article 32, is supposed to begin today.
Here is a link to Wikipedia and a biography of Major Hasan. The Washington Post also has a piece on his life.
The Houston Chronicle has an odd item:
Dwight Sullivan and I have often referred to Professor Melinkoff’s book, “The Conscience of a Lawyer.” One synopsis says:
Begins with the 1840 murder trial Regina vs. Courvoisier, when, before the second day of trial, Benjamin Courvoisier, the accused, confesses to his lawyer that he committed the crime. The first half of the text describes, in polished narrative style, the course and circumstances of this highly intriguing trial. In the remainder, the author discusses the intricate ethical, moral and strategic issues raised by the uncomfortable position in which the defense counsel is found.
In a CAAFLog posting Dwight says:
1 June 2010: the Article 32, UCMJ, hearing ICO MAJ Nidal Malik Hasan is set to begin at Fort Hood. MAJ Hasan is in pretrial confinement therefore the Article 10, UCMJ, speedy trial clock applies.
On 26 May 2010, Mr. Galligan, MAJ Hasan’s civilian counsel posted this on his blog.
Today is the deadline, imposed by the Article 32 Investigating Officer, for Army prosecutors to respond to long outstanding Hasan Defense Team discovery requests. As of this posting – after COB at Fort Hood, Texas – no formal response from the prosecutors has been received. And, as readers are aware, the initial Article 32 session is scheduled for just several days hence.
Garcia v. Commandant, USDB, No. 10-3027 (10th Cir. May 27, 2010).
Fernando Garcia was convicted after a guilty plea before a general court martial. He then sought habeas relief in federal district court pursuant to 28 U.S.C. § 2241, arguing that the military appellate courts failed to afford him adequate review of his Fourth Amendment claim based on Georgia v. Randolph, 547 U.S. 103 (2006). Because we agree with the district court that the military courts gave this argument full and fair consideration, we affirm its denial of Mr. Garcia’s petition.
This was a guilty plea case. NMCCA affirmed the conviction and held that Garcia waived the Randolph issue with his guilty plea. CAAF denied his petition. Had Garcia not plead guilty, he may have benefitted from Randolph which came out after his trial but during the course of appellate proceedings. You will recollect that Randolph is the third-party consent to search case.
In United States v. Rodriguez, 67 M.J. 156 (C.A.A.F. 2009), cert. denied, 130 S. Ct. 459 (2009) the court changed years of practice when it came to late filings of petitions for review with CAAF. In Rodriguez the court held that:
In light of Bowles v. Russell, 127 S. Ct. 2360 (2007), we conclude that the congressionally-created statutory period within which an accused may file a petition for grant of review is jurisdictional [and may not be waived or extended regardless of cause].
The effect was to deny an opportunity for an appellatant to petition on meritorious issues or have access to the United States Supreme Court. Prior to Rodriguez it was not uncommon for appellate counsel and appellants to miss the CAAF petition filing deadline, sometimes by just a few days. The reasons for the missed filing generally came down to administrative error within the appellate defense divisions. For various reasons filing deadlines weren’t being tracked accurately. It’s my understanding that the divisions have taken measures to correct the problems. However, there were a series of cases post Rodriguez where the appellant was denied access to CAAF based on Rodriguez. While unfortunate, for those that had no seemingly meritorious issues to petition on there was likely no prejudice. But what about those cases where the appellant had a good issue (regardless of whether or not it was a winner)?
Courtesy of CAAFLog here is a link to a proposed amendment to Article 27, UCMJ.
If passed the bill will have retroactive effect.
SECTION 1. REIMBURSEMENT OF ATTORNEY FEES OF A MEMBER OF THE ARMED FORCES WHO RETAINS PRIVATE COUNSEL AND HAS CHARGES BROUGHT UNDER THE UNIFORM CODE OF MILITARY JUSTICE DISMISSED OR WITHDRAWN OR IS ACQUITTED.
(a) Reimbursement Required Under Certain Circumstances- Section 827 of title 10, United States Code (article 27 of the Uniform Code of Military Justice), is amended by adding at the end the following new subsection:
`(d)(1) Nothing in this section (article) prohibits an accused from retaining private counsel to serve as defense counsel before a general court-martial or special court-martial.
`(2)(A) If the accused retains private counsel to represent the accused in a case described in subparagraph (B) and all of the charges against the accused are dismissed or withdrawn or the accused is acquitted on all charges (or some combination of dismissed or withdrawn charges and acquittal), the Secretary concerned shall reimburse the accused for all attorney fees incurred by the accused in the case.
`(B) Subparagraph (A) applies with respect to a case against a person subject to this chapter who is accused of any offense in violation of this chapter under circumstances involving the treatment of an insurgent, enemy combatant, detainee, or a suspected or known terrorist.
`(C) The Secretary concerned shall provide reimbursement required under this paragraph using funds otherwise available to the Secretary to carry out this chapter.’.
(b) Retroactive Application of Amendment- Paragraph (2) of subsection (d) of section 827 of title 10, United States Code (article 27 of the Uniform Code of Military Justice), as added by subsection (a), applies with respect to any charges brought under the Uniform Code of Military Justice after September 11, 2001, that involve the circumstances described in subparagraph (B) of such paragraph.
The Post & Courier reports that:
An active-duty Air Force airman accused in the death of a local American living in Germany has been acquitted in the case.
Chris Matyszyk, 36, died Jan. 12, nearly two weeks after suffering a fatal punch to the face outside a pub in the German town of Landstuhl, near Ramstein.
recordonline.com reports that:
United States Military Academy cadet has been convicted of rape in military court.
The judge in the court-martial has found Cadet Kyle C. Newman guilty on one charge of rape and one count of indecent conduct.
Newman was facing court-martial on two counts of rape and one count of indecent conduct. He had pleaded not guilty on those counts. On Tuesday, he pleaded guilty to three violations of a lawful general order of the Uniform Code of Military Justice, admitting to leaving post and fraternizing with a freshman cadet.
Court-Martial Trial Practice Blog
