Airman 1st Class Corey Hernandez pulled the trigger. Nothing was supposed to happen, except the metallic click of the hammer striking the firing pin.
Instead, the pistol fired.
Until Dec. 10, when the 23-year-old Garcia died, the Air Force had not had any reported incidents of airmen playing Trust.
Thanks to howappealing.law.com, here is a Ohio State Supreme Court opinion in State v. Smith. The issue is warrantless searches of cell-phones. While this issue may have been raised in a court-martial, I don’t see a relevant military appellate decision. So the issue is apparently an open one for court-martial cases.
Here is a link to a New York Times editorial on the Ohio case.
The Ohio Supreme Court has struck an important blow for privacy rights, ruling that the police need a warrant to search a cellphone. The court rightly recognized that cellphones today are a lot more than just telephones, that they hold a wealth of personal information and that the privacy interest in them is considerable. This was the first such ruling from a state supreme court. It is a model for other courts to follow.
The Army’s attempt to stem a rising tide of suicides made it impossible for a Fort Bliss soldier convicted of cruelty toward subordinates to get a fair trial, the soldier’s parents say.
"I still maintain that this was a miscarriage of justice," said John Taylor, father of Pvt. Jarrett Taylor. "They needed a conviction and they got it. É This is a sham."
Taylor said his son, a sergeant at the time, was trying to help soldiers on their first deployment in Iraq survive in a combat zone.
Jury instructions are too often so poorly written that even the most intelligent juror cannot understand them. That’s a serious problem. So how can we make jury instructions more understandable? Prof. Peter Tiersma offers many concrete suggestions in this article, available for free download on SSRN. If you’re a trial judge or trial lawyer, you need to read it.
From the (new) legal writer blog. Instructions given in a court-martial prosecution under the UCMJ can at times be confusing. Certainly the current practice in a court-martial of reading the instructions and then giving a written copy does help somewhat to alleviate potential issues from reading only.
FederalEvidence blog has this update on the status of a reporter privilege. As commented earlier, under Mil.R. Evid. 1103, any new evidence rule will become applicable to court-martial cases.
After many weeks of being listed on the Senate Judiciary Committee business calendar, on December 10, 2009, the Senate Judiciary Committee approved by a vote of 14 to 5 an amended version of S. 448, the Free Flow of Information Act of 2009.
The Federal Evidence Review will continue to monitor action on the House and Senate measures. For more information concerning the legislation, see Free Flow of Information Act of 2009 Legislative History Page.
FrumForum interviewed retired Major Merideth A. Bucher, author of the much cited paper, The Impact of Pregnancy on U.S. Army Readiness.
Bucher explains that a woman who becomes pregnant ceases to be available for combat service. She will be returned home; her unit is left missing a body, a soldier.
She passionately told of her own experience: Two days before Desert Storm was to begin the female intelligence officer in the Major’s battalion became aware she was pregnant. Because she could not deploy and was sent home the battalion was left vulnerable by having to fight without an intelligence officer present. By losing one person everyone else has to work that much harder to get the mission accomplished. And when a woman soldier in particular gets pregnant, Bucher argues, “it weakens every female soldier standing as a member of that unit. If one woman does that it taints the water for everybody.”
A counterterror airstrike in Yemen that may have targeted Anwar al-Awlaki, the extremist cleric linked to Fort Hood shooter Maj. Nidal Malik Hasan, could raise new questions about whether Hasan’s rampage in Killeen, Texas, on Nov. 5 was the act of a lone wolf or part of a conspiracy.
Reports the Christian Science Monitor.
With a seasonal title, Prof. Colin Miller reminds us of a particular caution when seeking to admit statements of a co-conspirator – the statements have to be made before the crime is committed. There should be the same impact in a court-martial prosecution under the UCMJ.
Prof. Colin Miller, Later On, We’ll Conspire: Court Of Appeals Of Indiana Notes That Statements After A Crime Has Been Perpetrated Cannot Be Co-Conspirator Admissions.
As the text of this Rule [Indiana/Fed./Mil. R. Evid. 801(d)(2)(E)] makes clear, the Rule only covers statements made during the course of (and in furtherance of) a conspiracy and does not cover statements made after the conspiracy has been effected and the crime has been perpetrated.
I have done several posts on this blog (here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it. Now, based upon the recent opinion of the Supreme Court of Utah in State v. Clopten, 2009 WL 4877404 (Utah 2009), we can add Utah courts to the list of courts that allow such expert testimony.
Blogs Prof. Collin Miller. Note that the Military Judges’ Benchbook already has an instruction about cross-racial identification for use at court-martial. Prof. Miller:
"'[T]he vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification.’"…Decades of study, both before and particularly after Long, have established that eyewitnesses are prone to identifying the wrong person as the perpetrator of a crime, particularly when certain factors are present….For example, people identify members of their own race with greater accuracy than they do members of a different race….In addition, accuracy is significantly affected by factors such as the amount of time the culprit was in view, lighting conditions, use of a disguise, distinctiveness of the culprit’s appearance, and the presence of a weapon or other distractions….Moreover, there is little doubt that juries are generally unaware of these deficiencies in human perception and memory and thus give great weight to eyewitness identifications….Indeed, juries seemed to be swayed the most by the confidence of an eyewitness, even though such confidence correlates only weakly with accuracy….That the empirical data is conclusive on these matters is not disputed by either party in this case and has not been questioned by this court in the decisions that followed Long.
United States v. Matthews is an interesting new Army decision.
In this case the appellate courts ordered a DuBay hearing. During that hearing the prior military judge testified as to his rationale for various decisions at trial. Using that testimony, the Army Court of Criminal Appeals applied the harmless beyond reasonable doubt standard to findings of constitutional error. On appeal, CAAF ordered a new review by ACCA specifically excluding the testimony of the judge at the DuBay hearing.
On 23 July 2009, the United States Court of Appeals for the Armed Forces set aside that decision, and remanded to this court for further review. United States v. Matthews, 67 M.J. 29, 43 (C.A.A.F. 2009). Specifically, our superior court held that it was error to consider the testimony of the original trial judge elicited during the DuBay hearing because it violated the protected deliberative processes of military judges sitting alone. Id. This court was instructed to reconsider our conclusion on harmless error without that improper testimony. Id.
Court-Martial Trial Practice Blog