Court-Martial Trial Practice Blog

Army about to help the defense with discovery and preparation

November 17, 2009 | The Law Office of Philip D. Cave

I commented yesterday that the decision by the Homeland Security Committee could be a potential boon to defense discovery in Major Hasan’s court-martial at Fort Hood.

Homeland Security committee begins collecting discovery for the Major Hasan defense team.

It’s not clear yet, but it looks like the Army and Department of Defense might also be about to do the same. One of the major issues that counsel have to pursue in death penalty cases at court-martial is the persons background. Besides the potential insanity issue on the merits, it is critical to develop as much of a personal history and background as possible. That means the defense will be requesting, and if they are smart, the government providing the expert assistance of a mitigation expert. The committee and potential Army actions will be of potential assistance to the defense. True, the investigations could develop something negative, but in this case that’s not something the defense needs to worry about at this stage. The defense needs information, the prosecution will try to stop or delay them getting it, so outside help is welcome.

Homeland Security committee begins collecting discovery for the Major Hasan defense team

November 16, 2009 | The Law Office of Philip D. Cave

Army Times reports:

Sen. Susan Collins of Maine says the Senate Homeland Security Committee will open an investigation into the murders at Fort Hood with a public hearing this week.

Major Hasan is facing 13 specifications of premeditated murder and likely any number of other lesser charges at court-martial.

AF “bottom blow”?

November 16, 2009 | The Law Office of Philip D. Cave

I commented a while ago about the Navy bottom-blow to remove the lowest quality performers to meet numbers. Stars & Stripes reports the AF needs to reduce, but it’s not clear how the reduction will be accomplished.

AF Nurse DNR case delayed

November 16, 2009 | The Law Office of Philip D. Cave

Austin-Statesman reports:

A court-martial scheduled to start today for a former Air Force nurse accused of the deaths of three patients in his care has been delayed indefinitely, officials at Lackland Air Force Base in San Antonio said.

No reason is given. But AP reports:

“Deserter” held at Bagram

November 16, 2009 | The Law Office of Philip D. Cave

Military.com reports:

A Maryland Soldier is in Army custody and classified as a deserter — unfairly, relatives say — after he extended a two-week midtour leave to take care of his sick wife and their new baby.

U.S. Rep. Roscoe Bartlett has lobbied the secretary of the Army to investigate whether the Army mistreated 20-year-old Pfc. Christopher Pfeiffer of Westminster. Fort Detrick officials have also worked to remedy his situation.

When investigators talk with Major Hasan we’ll know more

November 16, 2009 | The Law Office of Philip D. Cave

And pigs have wings and can fly.

The media continues to make the comment that investigators are waiting to talk with Major Hasan, at Fort Hood, and once they do we’ll know more about his motives. Huh? We’ll find out at court-martial what each party is suggesting are the reasons and motives, but unlikely before then, except for the continual extra-judicial statements by people close to the investigation who have been told not to talk about it but are quite happy to without a name.

Major Hasan asked for counsel, he’s got counsel; he’s a represented accused; charges are preferred; and he’s apparently in custody. So . . .

Why did the Army want to keep Major Hasan

November 14, 2009 | The Law Office of Philip D. Cave

There’s plenty of information being put out that Major Hasan had problems, not just with his ideology, but also with his provider skills. So, people ask, why would the Army want to keep him and place him counseling returning or deploying personnel, send him to Fort Hood, and prepare to deploy him. There have been several articles which explain how hard it is to get out of the military, especially if you are a medical professional who was educated at taxpayer expense. I’m not sure this is something that will be fully developed at Major Hasan’s court-martial. But this article in the Washington Post gives a general idea.

U.S. soldiers’ morale down in Afghanistan: Obstacles to getting mental health care cited in Army survey, by Ann Scott Tyson, Washington Post Staff Writer, Saturday, November 14, 2009.

Meanwhile, soldiers in Afghanistan are having greater difficulty getting help for psychological problems, for a variety of reasons, including a shortage of psychiatrists and other mental health workers, the survey showed.

Death penalty debate – more data points

November 14, 2009 | The Law Office of Philip D. Cave

Major Hasan’s acts at Fort Hood are quite appropriately being viewed as apt to impose a death penalty at his court-martial. Based on what we are seeing and hearing there seems to be little doubt that the prosecution can gain a conviction (although an insanity defense is not out of the question). Regardless, the events at Fort Hood are once again stirring the death penalty debate in general. So here is a piece about death penalty case exonerations.

This empirical study examines for the first time how the criminal system in the United States handled the cases of people who were subsequently found innocent through postconviction DNA testing. The data collected tell the story of this unique group of exonerees, starting with their criminal trials, moving through levels of direct appeals and habeas corpus review, and ending with their eventual exonerations. Beginning with the trials of these exonerees, this study examines the leading types of evidence supporting their
wrongful convictions, which were erroneous eyewitness identifications, forensic evidence, informant testimony, and false confessions. Yet our system of criminal appeals and postconviction review poorly addressed factual deficiencies in these trials. Few exonerees brought claims regarding those facts or claims alleging their innocence. For those who did, hardly any claims were granted by courts. Far from recognizing innocence, courts often denied relief by finding errors to be harmless. Criminal appeals and postconviction proceedings brought before these exonerees proved their innocence using DNA testing yielded apparently high numbers of reversals—a 14% reversal rate. However, that reversal rate was indistinguishable from the background reversal rates of comparable rape and murder convictions. Our system may produce high rates of reversible errors during rape and murder trials. Finally, even after DNA testing was available, many exonerees had difficulty securing
access to testing and ultimately receiving relief. These findings all demonstrate how our criminal system failed to effectively review unreliable factual evidence, and, as a result, misjudged innocence.

From the introduction: Brandon L. Garrett, Judging Innocence, 108 Columbia L. Rev. 55 (2008).

Recruiter misconduct

November 14, 2009 | The Law Office of Philip D. Cave

If you are like me you get a lot of questions about recruiter misconduct, malpractice, and fraud. Here is an interesting article:

Note, THE LEGAL IMPLICATIONS OF UNAUTHORIZED PROMISES AND OTHER MILITARY RECRUITER MISCONDUCT, 17 J. Pub. Interest L. 141 (Feb. 2008).

I agree with this statement on About.com:

Here’s a start . . .

November 14, 2009 | The Law Office of Philip D. Cave

U.S. President Barack Obama Saturday urged members of Congress not to turn the investigation into the Fort Hood massacre into "political theater."

Reports Military.com. This is a step in the right direction. Ratchet down the political rhetoric, allow the investigators to get their work done, and allow the prosecution and defense to focus on their court-martial case.