Court-Martial Trial Practice BlogArticle 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:
Articles Tagged with court-martial
A lawyers conscience
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:
June MilJus calendar
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.
A new approach to Rodriguez?
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)?
Of interest to civilian counsel
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.
Up periscope
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.
[Breaking]More on the West Point rape case
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.
Another LTC Lakin commentator
Andy Martin, Executive Director, Contrarian Commentary, posits that President Obama is not legally president, therefore LTC Lakin has a legitimate challenge to his orders.
Mr. Martin first tells us that:
I am completely independent and impartial in so far as the Lakin matter is concerned. So far as I am aware I have not had any contact with anyone involved in Lakin’s specific case. I am the author of the Obama book “Obama: The Man Behind The Mask” which first raised questions about Obama’s citizenship.
Up periscope
A Navy doctor pleaded guilty to two counts of wrongful sexual contact and two counts of conduct unbecoming an officer, in exchange for dropping 29 other counts of criminal allegations at a Yokosuka Naval Base court-martial Wednesday.
Grant Okubo/Stars & Stripes
Under the terms of a pretrial plea agreement, Lt. Cmdr. Anthony L. Velasquez, 48, will not serve more than seven days of confinement at the Yokosuka Naval Base brig.
Military judge Cmdr. David Berger sentenced Velasquez to two years in prison, a $28,000 fine and forfeiture of all pay and allowances, but the convening authority suspended the punishment in accordance with a pre-trial agreement.
Dayton Daily News reports:
The Air Force began hearing evidence Wednesday, May 26, to determine whether the Air Force Materiel Command’s former top enlisted man should be court-martialed for alleged sexual harassment of subordinates, adultery and other offenses under military law.
Air Force/AF Times Gurney faces allegations including extramarital relationships and that he sent semi-nude images of himself to Air Force women, requested pictures of their breasts, and touched their breasts and buttocks. The charges against him also include indecent exposure; dereliction of duty; having unprofessional relationships with female Air Force subordinates; misuse of his Defense Department computer; failure to obey an order, and attempting to influence the Air Force to assign airmen to jobs where he could have access to the women.
In accordance with R.C.M. 405(j)(2), Discussion:
On Wednesday, the government’s lawyers asked O’Sullivan to consider additional charges that he had sexually assaulted one airman and may have obstructed justice by telling two women he had sex with that they shouldn’t tell anyone about it.
A U.S. Soldier who blew the whistle on his comrades over possible drug use and the deaths of three civilians in southern Afghanistan suffered a severe beating in retaliation, officials said Tuesday.
The Soldier was beaten after telling authorities about illicit drugs and then, while recovering in hospital, recounted his comrades’ alleged role in the deaths of three Afghan civilians, said two officials, who spoke on condition of anonymity.
Military.com reports that:
Both the Montgomery and Post 9/11 GI Bills are worth over $49,000. This money is not a loan and will help you cover the costs of getting a degree. Full-time students receive up to $1,368 a month no matter how much tuition costs. The Post 9/11 GI Bill may even give you a monthly housing stipend of $1,200.
CAAF grant and remand – de facto immunity
Here’s an interesting grant and remand from CAAF.
No. 10-0265/AF. U.S. v. Douglas E. LONG. CCA 37044 (2009 CCA LEXIS 477).
WHETHER APPELLANT WAS DENIED DUE PROCESS BECAUSE ASSURANCES OF AIR FORCE OFFICIALS PROVIDED HIM WITH DE FACTO IMMUNITY FROM PROSECUTION.