court-martial Tag Archives — Page 37 of 60 — Court-Martial Trial Practice Blog

Hennis-DNA issues

March 11, 2010 | The Law Office of Philip D. Cave

I came across this item reading some history on the current court-martial. DNA has gained a prominent place in the prosecution and defense of criminal cases. But this piece illustrates that the DNA may only be as good as the testing done and the people doing the testing.

The Army began its prosecution in 2006 after a cold case detective with the Cumberland County Sheriff’s Office ordered DNA tests on the rape kit of Eastburn and on a blood sample from Hennis. That testing, conducted by the N.C. State Bureau of Investigation, matched Hennis’ DNA to sperm found in the rape kit, according to court documents.

The military has done further testing, lawyers said Monday.

Up periscope

March 11, 2010 | The Law Office of Philip D. Cave

Army Times reports.The Army says a soldier who returned to a hero’s welcome in Wisconsin misrepresented his rank, badges and the origin of his injuries.

FayObserver reports:

The 11th juror was provisionally seated in the court-martial of Army Master Sgt. Timothy B. Hennis on Wednesday.

CAAF speaker Jeh Johnson

March 10, 2010 | The Law Office of Philip D. Cave

Points of interest to military justice from the current General Counsel to the Department of Defense:’

Development of the rules of practice and procedure for Military Commissions. The Department regularly consults with and takes input from defense counsel involved in the Commissions and GitMo related matters.

This would be a better practice, and IMHO shows the DOD Joint Service Committee on Military Justice how it ought to be done.

Military death penalty – Davila

March 9, 2010 | The Law Office of Philip D. Cave

The prosecution of SPC Ivette Davila, at Fort Lewis, will generate some interest; hers will be the first death penalty prosecution of a woman under the UCMJ.

Checking – has a woman ever been executed as a result of a court-martial in the United States? The answer is no under the UCMJ. The two most famous death penalty cases involving women were Kinsella v. Singleton, 361 U.S. 234 (1960), and Reid v. Covert, 354 U.S. 1 (1957). (These cases stood, until the recent change to Article 2, UCMJ, for the proposition that there was no court-martial jurisdiction over civilians except under limited circumstances. The constitutionality of the recent changes to Article 2, UCMJ, extending jurisdiction over civilians is yet to be tested.)

Noted authority on the UCMJ Frederick Bernays Wiener represented Mrs. Kinsella.

Soldier (a woman) to face death penalty court-martial

March 9, 2010 | The Law Office of Philip D. Cave

Seattle Times reports.

A woman accused of killing two fellow soldiers from Joint Base Lewis-McChord and kidnapping their baby in 2008 will face a general court-martial after military authorities determined last week there was enough evidence to move forward with the case.

The News Tribune reports this is a death penalty referral (seems like a decent summary of the case so far). See also, BakersfieldNow.com.

Who would have believed it

March 8, 2010 | The Law Office of Philip D. Cave

FourthAmendment blog reports a new case:

Police reports were "deceptive and deficient," but the court believes officer without a credibility determination: Ties go to the runner, or the government. The court finds the officer deceptive and believes him anyway because of a presumption police officers tell the truth [even when their reports are "deceptive and deficient"]. United States v. Jauregui-Barrajas, 2010 U.S. Dist. LEXIS 19064 (D. Ariz. January 13, 2010).

Prosecutors and discovery

March 8, 2010 | The Law Office of Philip D. Cave

A case pending at the U.S. Supreme Court was recently settled out of court, and the case withdrawn from consideration. It appears that there has been a settlement of $12M, for prosecutorial misconduct.

"This means prosecutors who step outside their traditional role and who act as investigators (in criminal cases) can still be subject to civil rights lawsuits just as police would be."

Prosecutors are normally immune from lawsuits involving work during trials. The 8th U.S. Circuit Court of Appeals decided in McGhee vs. Pottawattamie County in 2008 that plaintiffs could sue prosecutors under civil rights statutes if the alleged wrongdoing arose from investigatory work before the trial started.

Up periscope – WE070310

March 7, 2010 | The Law Office of Philip D. Cave

Stars & Stripes reports.

The Army recently asked 45 of its soldiers in the highest enlisted rank to retire for substandard performance, past criminal convictions, problems with alcohol, fraternization or sexual harassment in their recent pasts.

Of the 45 sergeants major whose records were flagged under the newly reinstituted Qualitative Management Program, 28 complied, putting in their retirement paperwork and quietly fading away.

But 15 fought it, arguing that they were valuable Army assets despite any previous incidents. A panel of their peers usually agreed: 12 of the 15 were allowed to remain on active duty. The remaining three were forced to retire, however.

Pretrial confinement post-conviction

March 7, 2010 | The Law Office of Philip D. Cave

Here’s the scenario:

Client is convicted at court-martial. Sentencing is to take place the next day, or a Monday after a Friday conviction. Based on the charges and the evidence there’s a reasonable likelihood the client will get some confinement. The command wants to put the client in pretrial confinement pending sentencing. Can they?

1. If the client was already confined, the confinement can be continued.

Denial of counsel of choice

March 7, 2010 | The Law Office of Philip D. Cave

There are a number of ways denial of counsel of choice can come up, most frequently related to the availability of civilian counsel. Here’s an interesting one.

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). The opinion is written by Justice Scalia. Here are the important part of the opinion:

In sum, the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation "complete."