court-martial Tag Archives — Page 49 of 60 — Court-Martial Trial Practice Blog

Impact of pregnancy on readiness?

December 25, 2009 | The Law Office of Philip D. Cave

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.”

Major Hasan news bite

December 24, 2009 | The Law Office of Philip D. Cave

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.

Co-conspirator reminder

December 24, 2009 | The Law Office of Philip D. Cave

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.

Eyewitness identification

December 24, 2009 | The Law Office of Philip D. Cave

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.

Judicial testimony – not

December 24, 2009 | The Law Office of Philip D. Cave

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.

Limiting instructions

December 24, 2009 | The Law Office of Philip D. Cave

Here I’m talking about limiting instructions at court-martial, not alleged curative instructions.

A limiting instruction is appropriate where evidence is admissible for one or more purposes, but is also inadmissible for one or more purposes. Here is a reminder from federalevidence blog of how that works.

In multi-defendant cocaine conspiracy trial, FRE 105 was satisfied by trial judge’s limiting instruction prior to deliberations that the jury give “separate, personal consideration to the case of each individual defendant” and to “analyze what the evidence in the case shows with respect to that individual, leaving out of consideration entirely any evidence admitted solely against some other defendant”; although the instruction was provided immediately prior to deliberations rather than contemporaneous with the testimony, the instruction satisfied the obligation to instruct jury when evidence can be admitted against one party and not others, in United States v. Beasley, 495 F.3d 142 (4th Cir. July 25, 2007) (No. 04-4107)

NMCCA sets aside BCD for Article 13 credit

December 24, 2009 | The Law Office of Philip D. Cave

Article 13, UCMJ, prohibits pretrial punishment.

In United States v. Turner, NMCCA 200401570 (N-M.C. Ct. Crim. App. 22 December 2009), the court found pretrial punishment and set-aside the BCD. This may be somewhat pyrrhic because the sentence was adjudged in 2001. That means the appellant has been on unpaid appellate leave since 2001. In his claim for post-trial delay he does not assert that being on appellate leave without a DD214 was prejudicial.

When the ship returned from its brief underway period, the appellant was brought from the
pretrial confinement facility to appear before the Captain and crew at a public mast (“mast” is frequently understood to mean nonjudicial punishment proceedings, but it also includes award ceremonies and individual meetings held at a service member’s request). After the Captain informed the appellant and the crew that the charges were being referred for trial, the appellant returned to pretrial confinement.

Good call Mr. President

December 24, 2009 | The Law Office of Philip D. Cave

The White House will not weigh in on the case of the three Navy SEALs facing court martial for allegedly mistreating an Iraqi terror suspect believed to have been behind the slaying of four Americans in 2004.

CNSNews.com reports.

We already have too much litigation by media, and by Congress in courts-martials and other UCMJ actions. The politicizing of military justice doesn’t serve military justice.

Still open case

December 24, 2009 | The Law Office of Philip D. Cave

Nearly two years after prosecutors in Jacksonville decided not to charge anyone in the gunfight that killed a club owner outside his bar north of Springfield, the Navy has acquitted a sailor of murder in the case.

NewsJacksonville.com reports —

Navy prosecutors would only say they had believed the case should be pursued.

Major Hasan gossip

December 24, 2009 | The Law Office of Philip D. Cave

An Army psychiatrist accused of fatally shooting 13 at the Fort Hood, Texas, military base had asked for a Muslim cleric’s advice about killing U.S. troops, according to a new interview.

CNN.com reports.

Retired Army Col. John Galligan, Hasan’s civilian attorney, has said his client is considering pleading not guilty by reason of insanity [at his court-martial].