court-martial Tag Archives — Page 5 of 60 — Court-Martial Trial Practice Blog

LTC Lakin’s change of counsel

October 6, 2010 | The Law Office of Philip D. Cave

Despite the political rhetoric LTC Lakin’s case has given us a number of teaching moments or opportunity to refresh on some basic practice principles.

1. Can LTC Lakin change lawyers at this stage. The answer in this case is probably yes. Although technically Mr. Jensen should submit a motion to be released and the new counsel file a notice of appearance.

2. Can LTC Lakin’s get a delay in the trial. Trial is currently set to begin 3 November 2010. The current docket is dated 6 October 2010. There is some question whether or not Neal Puckett or his other counsel are available because of the Wuterich trial ongoing. Also, there would be an issue of giving them an opportunity to prepare for trial. The answer to a continuance request in this case is probably yes, unless the prosecution can show an extraordinary adverse effect on their case by a delay.

What’s going on

October 6, 2010 | The Law Office of Philip D. Cave

CNN has this report on the Morlock Article 32, UCMJ, hearing.

A U.S. soldier accused of killing civilians in Afghanistan should face a court-martial on murder and other charges, an Army officer has recommended.

The recommendation, included in a document obtained by CNN, comes after prosecutors laid out their evidence against Spc. Jeremy Morlock in a hearing last week. Morlock is one of five members of the Army’s 5th Stryker Brigade who have been accused of premeditated murder in a series of incidents between January and May.

MAJ Hasan sitrep

October 4, 2010 | The Law Office of Philip D. Cave

Army Times reports:

A military officer has ordered a mental evaluation for the suspect in the November Fort Hood shootings before a key hearing next week.

Earlier this year, Army officials appointed a three-member board of military mental health professionals to determine whether Maj. Nidal Hasan is competent to stand trial and his mental status the day of the Nov. 5 shooting.

LTC Lakin sitrep – more “huge news”

October 4, 2010 | The Law Office of Philip D. Cave

The APF website is back up!

The American Patriot Foundation is pleased to announce that LTC Lakin has repositioned his forces, has retained new legal counsel, and is extremely grateful that the Foundation will be dedicating the critical next few weeks before his planned court-martial on November 3-5, to focusing entirely on public affairs, strategic communications/messaging and coalition-building and that their support will continue seamlessly as the new attorney prepares for trial. CLICK HERE FOR FULL PRESS RELEASE.

The release partly says:

NMCCA unpublished op. on “immunity”

October 3, 2010 | The Law Office of Philip D. Cave

United States v. Sagona, sentenced at court-martial on 8 May 2008, appeal decided 30 September 2010.

The issue was IAC of trial defense counsel who allegedly failed to investigate and advise on a potential defense of immunity. R.C.M. 704 covers the issues of immunity, tempered by case law. Basically only the GCMCA can grant immunity, but . . . . Cooke v. Orser, 12 M.J. 335 (C.M.A, 1982), is one of the more well known cases about immunity outside the R.C.M. and UCMJ requirements.

The court in Sagona had ordered a Dubay hearing. See United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1986) and United States v. Ginn, 47 M.J. 236 (C.M.A. 1986).

Instructions

October 2, 2010 | The Law Office of Philip D. Cave

I posted yesterday on a new Army case dealing with instructions on an affirmative defense in a court-martial under the UCMJ.

Today I’m posting on United States v. Ramon, an unpublished opinion from the NMCCA dated 28 September 2010.

In his sole assignment of error, the appellant alleges that the military judges erred in failing to instruct the members as to mistake of fact as to consent.

Prosecutorial misconduct

October 2, 2010 | The Law Office of Philip D. Cave

On 23 September 2010 USA Today published a front page piece about federal prosecutors.

Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.

USA Today has an opinion piece in today’s paper which is a rebuttal.

New ACCA unpublished opinion

October 1, 2010 | The Law Office of Philip D. Cave

United States v. Stanley.

The appellant raised eight errors through counsel and an additional six in accordance with United States v. Grostefon.

One assignment of error warrants discussion, but no relief. Specifically, appellant alleges that the military judge erred by failing to properly instruct the panel regarding appellant’s right during mutual combat to exercise self-defense when the force used against him escalated. Today we find that any error by the military judge was harmless beyond a reasonable doubt and affirm the findings and sentence.

Bullcoming sitrep 1

September 29, 2010 | The Law Office of Philip D. Cave

Here is an observation by federalevidence.com:

One issue raised by the new case concerns whether a majority of the Court still supports the Confrontation Clause analysis established under Crawford v. Washington in 2004, and Melendez-Diaz v. Massachusetts in 2009. Two Justices who voted in the majority (John Paul Stevens and David H. Souter) have since retired. The five majority votes in Melendez-Diaz v. Massachusetts included author Justice Antonin Scalia and Justices John Paul Stevens, David H. Souter, Clarence Thomas (who also filed a concurring opinion), and Ruth Bader Ginsburg. The four dissenting included Justice Kennedy, who authored the dissent, and Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Samuel Anthony Alito, Jr.. It is unclear whether a new majority will be formed on the Confrontation Clause analysis and how the newest Justices (Sonia Sotomayor and Elena Kagan) will vote on Confrontation Clause issues.

LTC Lakin sitrep

September 29, 2010 | The Law Office of Philip D. Cave

Humor in military lawyering is good. Humor is good. Standby for a comment from DMLHS tonight.

In thinking about why the case would be delayed to 3 November 2010 there were all kinds of ideas floating around, some ideas being of a conspiratorial nature. I had missed the piece noted by Reality Check (thanks!). Anyway, I thought the first place to go would be be docket – but first a digression on the piece of reporting Reality Check caught.

The military judge did delay the start of the trial for a month to give the defense more time to ask the court of appeals for help. (WUSA9 — http://goo.gl/Am1Q)