court-martial Tag Archives — Page 54 of 60 — Court-Martial Trial Practice Blog

Military Tattoo

December 7, 2009 | The Law Office of Philip D. Cave

No, this isn’t an advert for the Edinburgh Military Tattoo, or any other. It’s a reminder that

Air Force officials reinforce tattoo, body alteration policy.

Air Force Instruction 36-2903, Dress and Personal Appearance, states "Excessive tattoos and brands will not be exposed or visible while in uniform." Excessive is defined as any tattoo/brands exceeding one-quarter of the exposed body part and those above the collarbone when wearing an open collar uniform. The AFI also outlines the current provisions and prohibitions to include standards governing piercings and body alterations.

No pay due

December 7, 2009 | The Law Office of Philip D. Cave

No pay due, not needed. Army Times reports that a captain stationed at Fort Lewis has plead guilty to stealing about $690,000.00 while in Iraq. No court-martial.

Patient confidentiality in the military

December 7, 2009 | The Law Office of Philip D. Cave

I have posted in connection with some comments about Major Hasan and his desire to have patients prosecuted at court-martial for war crimes and other offenses while deployed to Iraq.

Major Hasan’s war crimes trial requests, 17 November 2009.

The issue has gained new attention with the recent mass shootings at Fort Hood that killed 13 and wounded 43. In the weeks before the rampage, the accused gunman, Maj. Nidal M. Hassan, an Army psychiatrist, told colleagues and Army lawyers that he wanted to report soldiers who had admitted in counseling sessions that they witnessed or committed war crimes in Iraq or Afghanistan. War crimes can include acts like torture, murder, sexual assault and cruel treatment.

Anything and everything

December 6, 2009 | The Law Office of Philip D. Cave

A number of articles are circulating and the blogosphere is discussing the obligations of Major Hasan’s counsel to do anything and everything to avoid the death penalty as a sentence at his court-martial. Here is an interesting item, not that it’s going to be relevant to the Fort Hood case involving Major Hasan, but as an example of how closely IAC is looked at in a death penalty case.

Kiddie porn: Risky to ignore.

Karen Franklin first notes that:

It’s not what you think I said, it’s what I said

December 6, 2009 | The Law Office of Philip D. Cave

Whenever I talk about court-room lawyering I always emphasize that the person must first be themself and not try to become someone they aren’t. Once you decide who you are, your “style,” and how you will present, then you can take the other tools of advocacy and adapt them to your personality and form of presentation. Sure, you can be taught and learn about distracting mannerisms – the clicking pen, the walking back and forth, or about filler words, but you can’t change the essence of who you are when making a court-room presentation. My theory is to embrace your own self and then adapt the tools. So it was with interest I saw this item in the November issue of The Jury Expert.

Katherine James, Everything I Ever Needed To Know About Live Communication I Learned From Konstantin Stanislavski: Common Mistakes and Best Practices, 21(6) The Jury Expert, Nov. 2009.

The military has gone through its phase of employing actor/consultants to teach trial advocacy. I’m not completely a fan of the method, but I can see there are valuable teaching points. Here are some.

Update on Mandatory Supervised Release

December 6, 2009 | The Law Office of Philip D. Cave

Thanks to CAAFLog there is news about the military mandatory release program imposed on those convicted and sentenced at court-martial.

Judge Rogers of the 10th Circuit has found the program to be legal and constitutional, in Huschak v. Gray, 642 F. Supp. 2d 1268 (D. Kan. 2009). (United States v. Huschak, ACM 35382 (A. F. Ct. Crim. App. 28 June 2004) aff’d 61 M.J. 154 (C.A.A.F. 2005). He was sentenced to 10 years of confinement, and the CA reduced confinement to 8 years. As Judge Rogers notes, no issues relating to the MSRP were raised at trial or on appeal. The case preceded United States v. Pena.

In the old days the military prisoner who reached the MRD would be released from confinement and released. There was no consequence to their current sentence if they got in more trouble, also the government couldn’t impose conditions on that release such as attending sex offender treatment programs. That meant that as they got closer to parole eligibility the prisoner started to think about gaming the system. At the time a paroled prisoner would be on the military leash up until their FTD, they could have parole revoked, and the could be back serving every day of the adjudged sentence. Typically that meant that a prisoner offered parole during their last year up to MRD gamed the system and refused parole. They’d have to serve up to their MRD for several more months, but it was better than being on the government leash for several more years through the parole system.

More on Stolen Valor

December 5, 2009 | The Law Office of Philip D. Cave

Here is a good site for information about Stolen Valor Act issues.

Web Site Aims to Uncover Fakers in Fatigues

Reportstolenvalor.org.

Another misrepresentation of military service?

December 5, 2009 | The Law Office of Philip D. Cave

I’ve posted before about different cases where a service-member or civilian have “invented” their military career. Two recent examples are here and here. Now there’s another. Military.com reports that a retired senior chief petty officer appears to have fabricated his presence in USS COLE when the ship was attacked.

In early November, retired Senior Chief Jeffrey Sparenberg was the guest of honor at military heritage day in Delaware.

Sparenberg spent 23 years in the Navy, including time on the destroyer Cole, and he was at Fort DuPont State Park that day to donate a flag that he said flew over the Cole shortly after it was attacked nine years ago.

The Rule of Lenity

December 5, 2009 | The Law Office of Philip D. Cave

The “rule of lenity” “requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”

From Levin, Daniel and Stewart, Nathaniel, Wither the Rule of Lenity, Engage, November 16, 2009. This is a claim or objection I have used from time to time, not always successfully. Typically I’m using it as an argument regarding application of an R.C.M. or Mil. R. Evid., an argument by analogy I suppose. Another way to express this would be that where there is an ambiguity the ambiguity should be construed against the writer. Perhaps there is some hope?

In 2008, in United States v. Santos, the Supreme Court issued a plurality opinion holding that a key term in a federal money laundering statute was ambiguous and applied the rule of lenity to resolve the ambiguity in the defendants’ favor. The plurality involved just such a coalition of conservative and liberal Justices (Justices Scalia, Thomas, Ginsburg, and Souter; with Justice Stevens writing separately and agreeing that the rule should apply), raising the question of whether the rule may be entering a period of somewhat greater application…

Pew research on military justice

December 5, 2009 | The Law Office of Philip D. Cave

I found this piece by the Pew Research Center’s Project for Excellence in Journalism of passing interest. The lead blog story for a while is the SEAL case and the pending court-martial. I find it surprising in light of the ongoing events regarding Major Hasan at Fort Hood.