U.S. President Barack Obama Saturday urged members of Congress not to turn the investigation into the Fort Hood massacre into "political theater."
Reports Military.com. This is a step in the right direction. Ratchet down the political rhetoric, allow the investigators to get their work done, and allow the prosecution and defense to focus on their court-martial case.
How far should members of congress or the President, or anyone, get involved in how to prosecute Major Hasan for his acts at Fort Hood. Certainly the victims are entitled to be involved and are required to be through the Department of Defense Victim-Witness Assistance Program. The program does not give politicians or government officials a right to be involved.
Risch Urges Additional Murder Charge in Fort Hood Slayings
This article reports that at least two Congress people are getting involved seeking to influence the prosecution of Major Hasan. Are they creating fodder for various defense motions, making the prosecutions job a political one, or just plain bad form. The talk is about Article 119a, UCMJ, a product of the Unborn Victims of Violence Act (UVVA), which is an outgrowth of special interests who convinced Congress in 2004 that a fetus is a child. It’s a political issue, it was a political hot-potato then, and potentially still is, albeit there is a statute in place. I guess we should see what other pressures and special interests can get on board to help the prosecutors out, and possibly the defense in the process – I’m sure both sides will be happy for the extra help.
I have previously noted the First Circuit’s criticism of prosecutors calling police to set the “context” of an investigation. The view being that’s it’s an attempt to have the police testify to a whole lot of inadmissible evidence and hearsay, and prejudice the members. The same issue should be avoided and objected to in a court-martial.
Prosecution “overview” witnesses and More on groundwork.
According to a post at FederalEvidenceBlog, the Tenth Circuit is joining in condemning the “apparently widespread abuse” of “background” testimony.
A question arises for Major Hasan and the court-martial about venue or situs or trial at Fort Hood or somewhere else. Here is the general rule from R.C.M. 906(b)(11), for a change of venue of a court-martial:
United States v. Curtis was at one time a death penalty case, but not anymore as a result of post-trial actions. Here though is the court on change of venue:
Appellant argues that the defense counsel should have asked for a change of venue because of pretrial publicity. However, pretrial publicity standing alone, no matter how widespread, is not a sufficient reason for a change of venue. As will be discussed in Issue XV, the defense is not entitled to have such a motion granted unless it is shown that such publicity has permeated the panel members. In most instances a motion for a change of venue takes place after the voir dire. But "where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it [**35] to another county…." Sheppard v. Maxwell, 384 U.S. 333, 363, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966). However, a showing of actual prejudice is usually necessary before a change of venue is granted. In this case the pretrial publicity had not so permeated the courtroom that the defense was left with promises of members to disregard what they might have heard.
The Christian Science Monitor reports and makes this observation:
But emerging evidence that Hasan may have terrorist connections could alter the prosecutorial strategy, as his story would hold invaluable information for investigators. One way to get that information would be to offer Hasan a deal – such as revoking the death penalty if he’ll fill in the gaps in the investigation.
If there is validity to the potential terror information will both sides recognize it, recognize its value, and will those in power accept the likely criticism of the crowd for doing a deal? In order for a plea agreement the charges would have to be referred non-capital at court-martial. A person facing a death penalty on referred court-martial charges cannot plead guilty.
A number of groups are unhappy that Major Hasan has not been charged under Article 119a, UCMJ, yet for his killing of a pregnant mother and her fetus at Fort Hood. (See e.g. Pro-Life Group Asks Military to Charge Hasan) So far his court-martial charges are all the 118’s. One of the other issues that’s been discussed with Major Hasan is whether he tried to avoid going to deployment or asked to be discharged. Elsewhere, IPSnews.com reports:
U.S. Army Specialist Alexis Hutchinson, a single mother, is being threatened with a military court-martial if she does not agree to deploy to Afghanistan, despite having been told she would be granted extra time to find someone to care for her 11-month-old son while she is overseas.
Hutchinson, of Oakland, California, is currently being confined at Hunter Army Airfield near Savannah, Georgia, after being arrested. Her son was placed into a county foster care system.
So, how hard is it to avoid deployment without going AWOL?
WOAI.com reports:
A former military nurse will be court-martialed for allegedly killing three terminally ill patients at the Air Force’s largest hospital. Capt. Michael Fontana is set to enter a plea in September at Lackland Air Force Base, near San Antonio. The military announced Tuesday that a trial date will also be set.
Charges have not been referred capital.
So which CID agents are violating Article 92, UCMJ? And if they are lawyers on the government side, which lawyers are violating Article 92, UCMJ, and ethics rules for lawyers in the Army regarding pretrial publicity?
officials told The Associated Press on condition of anonymity because they were not authorized to speak about the case publicly.
Army Times.
(Thanks to Volokh Conspiracy) we have Sanford v. United States, No. 08-5402 (D.C. Cir. 13 November 2009), in which the court held that a SPCM with less than six members is not unconstitutional. The court notes that:
This court has recognized that the standard of review in non-custodial collateral attacks on court-martial proceedings is “tangled.” United States ex rel. New v. Rumsfeld, 448 F.3d 403,
406 (D.C. Cir. 2006) (“New II”).
Sanford had been arguing that the government had the burden to demonstrate reasons why there should not have been at least six members on his court-martial panel, in accordance with Ballew v. Georgia, 435 U.S. 223 (1978). The district court dismissed Sanford’s case, and he appealed. The circuit court ultimately concluded that the burden was on Sanford to show reasons why there was a constitutional violation and that because he’d not done so, dismissal was proper. Thus, a special court-martial can still have less than six members. It is uncertain if Sandford will appeal.
I have mentioned several times that I always look for MySpace, Facebook, and other social network accounts held by witnesses at a court-martial trial I have. In a number of instances I have found information, photographs, or leads to other information that has been useful for cross-examination at the court-martial. Google and other social network sites can be a useful investigative tool for military lawyers. See CNN Justice: Facebook status update provides alibi; The Local, His Facebook Status Now? ‘Charges Dropped;” Professor Colin Miller has more on his Blog.
Here is a case from New York City in which the accused’s Facebook activity proved his alibi. This case also, again, points out the fallacy of identifications. The accused was a suspect in a robbery and was picked out of a line-up.
Rodney Branford claimed alibi. He claimed and had his family testify that he was elsewhere on his father’s computer updating his Facebook account at the time of the robbery. The prosecutors didn’t think that was sufficient proof of alibi and were still going toward trial. Heck who believes and accused and his family. At least the prosecutor was willing to work with the defense and subpoened records from Facebook. The records showed that indeed he was updating his Facebook account from his father’s computer (IP address).
Court-Martial Trial Practice Blog