Court-Martial Trial Practice Blog

Bridging the gap – again.

August 18, 2009 | The Law Office of Philip D. Cave

CAAF has visited statements made by military judges post-trial typically in bridging the gap sessions. Here is an interesting grant and set-aside:

No. 08-0215/NA. U.S. v. Tyrice L. HAYES. CCA 200600910. Review granted on the following issue:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT APPELLANT WAS NOT DENIED HIS RIGHT TO A FAIR TRIAL DESPITE THE MILITARY JUDGE’S (1)EXHIBITION OF BIAS, AFTER TRIAL, IN ANNOUNCING HIS PERSONAL DISTASTE FOR BOTH HOMOSEXUALITY AND APPELLANT; AND (2) HIS EXHIBITION OF PARTIALITY, DURING TRIAL, BY ADVISING THE GOVERNMENT ON TRIAL TACTICS.

Fabricated DNA evidence.

August 18, 2009 | The Law Office of Philip D. Cave

Today’s New York Times has an article about fabricating DNA evidence in a laboratory. Unlike naturally-occurring DNA that could merely be planted at a crime scene, fabricated DNA would not require access to an original, physical specimen of a particular person’s DNA, so long as one had access to his DNA database profile. An excerpt from the NYT:

Scientists in Israel have demonstrated that it is possible to fabricate DNA evidence, undermining the credibility of what has been considered the gold standard of proof in criminal cases.

The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.

Marine Officer Faces Court-Martial Trial On Rape Charges

August 18, 2009 | The Law Office of Philip D. Cave

Here is a 10News report of a Marine at San Diego, a law school graduate on his way to becoming a Marine judge advocate.

A San Diego-based U.S. Marine officer, Capt. DW who is accused of rape and indecent assault, will be tried in a general court-martial set to begin Wednesday, Marine Corps officials said.

Post-trial delay prejudice has to be shown.

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

CAAF has released an opinion in United States v. Bush, __ M.J. ___ (C.A.A.F. 2009). That means, according to CAAFLog, two more to go before of all of the current pending decisions have been released. Judge Erdmann writes the opinion; Judge Ryan writes a “concur in the judgment” opinion which Judge Stuckey is in agreement with.

This is a post-trial speedy review case. The NMCCA decision was affirmed which denied relief. Appellant had submitted a general claim of prejudice without any supporting documents. The court also decided that the NMCCA erred in placing the burden on appellant to produce evidence of prejudice, but the error of burden shifting was harmless beyond reasonable doubt. The court specifically avoided creating a presumption of prejudice for future cases.

In her concurring opinion Judge Ryan said she wants to revisit the post-trial delay jurisprudence, and reject any decision-making based on a public perception of injustice theory. She is open to the possibility of relief where there is actual prejudice.

CrimProf Blog

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

Professor Colin Miller of the excellent EvidenceProf blog alerts that the CrimLawProf blog is back up and running with a new cast of characters.

Army screening NCOs to rid service of marginal leaders

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

Here’s a little more on the Army’s reinstatement of the QMP program from Nancy Montgomery with Stars & Stripes.

After nearly seven years of suspension, what the Army calls the “Qualitative Management Program” is back, providing a means, the Army says, of ridding the service of marginal leaders. The QMP review applies to all retirement-eligible master sergeants, sergeants major and sergeants first class with 20 to 30 years of service in the regular Army, as well as the active Reserves and National Guard

I would assume that a side effect of this policy would be less willingness to grant certain types of clemency post-trial. I remember two “bottom-blows” in the Navy where less clemency was a side effect.

Lynndie England Talk Canceled After Threats.

August 15, 2009 | The Law Office of Philip D. Cave

Military.com is reporting: August 14, 2009

(The talk is reported here.)

Associated Press

Another war protestor

August 15, 2009 | The Law Office of Philip D. Cave

Yesterday was a post about another active duty war protestor. Here is an update and some commentary.

——————–

Armed for Court-Martial Combat, The Austin Chronicle.

Too many limits on death penalty appeals?

August 15, 2009 | The Law Office of Philip D. Cave

With several military personnel on death row and in the federal appeals/habeas process, and several death referred cases pending, here is an interesting article on some federal judges pushing back on limits on appeals.

Limits On Death Penalty Review Sparking Judges’ Dissents

Posted Aug 14 2009 –

This war objector faces a year in jail.

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

From the Killeen Daily Herald News, by Rebecca LaFlure

(photo Steven Doll)
Sgt. Travis Bishop, 57th Expeditionary Signal Battalion, walks out of a military court at Fort Hood with supporter Cindy Thomas, manager of Under the Hood Café Thursday afternoon on the first day of his special court-martial.

A Fort Hood soldier who says fighting in a war violates his religious views faces up to a year in jail for refusing orders to deploy to Afghanistan.