UCMJ Tag Archives — Page 23 of 51 — Court-Martial Trial Practice Blog

June MilJus calendar

May 30, 2010 | The Law Office of Philip D. Cave

1 June 2010: the Article 32, UCMJ, hearing ICO MAJ Nidal Malik Hasan is set to begin at Fort Hood. MAJ Hasan is in pretrial confinement therefore the Article 10, UCMJ, speedy trial clock applies.

On 26 May 2010, Mr. Galligan, MAJ Hasan’s civilian counsel posted this on his blog.

Today is the deadline, imposed by the Article 32 Investigating Officer, for Army prosecutors to respond to long outstanding Hasan Defense Team discovery requests. As of this posting – after COB at Fort Hood, Texas – no formal response from the prosecutors has been received. And, as readers are aware, the initial Article 32 session is scheduled for just several days hence.

A new approach to Rodriguez?

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

In United States v. Rodriguez, 67 M.J. 156 (C.A.A.F. 2009), cert. denied, 130 S. Ct. 459 (2009) the court changed years of practice when it came to late filings of petitions for review with CAAF. In Rodriguez the court held that:

In light of Bowles v. Russell, 127 S. Ct. 2360 (2007), we conclude that the congressionally-created statutory period within which an accused may file a petition for grant of review is jurisdictional [and may not be waived or extended regardless of cause].

The effect was to deny an opportunity for an appellatant to petition on meritorious issues or have access to the United States Supreme Court. Prior to Rodriguez it was not uncommon for appellate counsel and appellants to miss the CAAF petition filing deadline, sometimes by just a few days. The reasons for the missed filing generally came down to administrative error within the appellate defense divisions. For various reasons filing deadlines weren’t being tracked accurately. It’s my understanding that the divisions have taken measures to correct the problems. However, there were a series of cases post Rodriguez where the appellant was denied access to CAAF based on Rodriguez. While unfortunate, for those that had no seemingly meritorious issues to petition on there was likely no prejudice. But what about those cases where the appellant had a good issue (regardless of whether or not it was a winner)?

Of interest to civilian counsel

May 27, 2010 | The Law Office of Philip D. Cave

Courtesy of CAAFLog here is a link to a proposed amendment to Article 27, UCMJ.

If passed the bill will have retroactive effect.

SECTION 1. REIMBURSEMENT OF ATTORNEY FEES OF A MEMBER OF THE ARMED FORCES WHO RETAINS PRIVATE COUNSEL AND HAS CHARGES BROUGHT UNDER THE UNIFORM CODE OF MILITARY JUSTICE DISMISSED OR WITHDRAWN OR IS ACQUITTED.

(a) Reimbursement Required Under Certain Circumstances- Section 827 of title 10, United States Code (article 27 of the Uniform Code of Military Justice), is amended by adding at the end the following new subsection:

`(d)(1) Nothing in this section (article) prohibits an accused from retaining private counsel to serve as defense counsel before a general court-martial or special court-martial.

`(2)(A) If the accused retains private counsel to represent the accused in a case described in subparagraph (B) and all of the charges against the accused are dismissed or withdrawn or the accused is acquitted on all charges (or some combination of dismissed or withdrawn charges and acquittal), the Secretary concerned shall reimburse the accused for all attorney fees incurred by the accused in the case.

`(B) Subparagraph (A) applies with respect to a case against a person subject to this chapter who is accused of any offense in violation of this chapter under circumstances involving the treatment of an insurgent, enemy combatant, detainee, or a suspected or known terrorist.

`(C) The Secretary concerned shall provide reimbursement required under this paragraph using funds otherwise available to the Secretary to carry out this chapter.’.

(b) Retroactive Application of Amendment- Paragraph (2) of subsection (d) of section 827 of title 10, United States Code (article 27 of the Uniform Code of Military Justice), as added by subsection (a), applies with respect to any charges brought under the Uniform Code of Military Justice after September 11, 2001, that involve the circumstances described in subparagraph (B) of such paragraph.

Up periscope

May 27, 2010 | The Law Office of Philip D. Cave

The Post & Courier reports that:

An active-duty Air Force airman accused in the death of a local American living in Germany has been acquitted in the case.

Chris Matyszyk, 36, died Jan. 12, nearly two weeks after suffering a fatal punch to the face outside a pub in the German town of Landstuhl, near Ramstein.

[Breaking]More on the West Point rape case

May 27, 2010 | The Law Office of Philip D. Cave

recordonline.com reports that:

United States Military Academy cadet has been convicted of rape in military court.
The judge in the court-martial has found Cadet Kyle C. Newman guilty on one charge of rape and one count of indecent conduct.
Newman was facing court-martial on two counts of rape and one count of indecent conduct. He had pleaded not guilty on those counts. On Tuesday, he pleaded guilty to three violations of a lawful general order of the Uniform Code of Military Justice, admitting to leaving post and fraternizing with a freshman cadet.

recordonline.com reports that:

Another LTC Lakin commentator

May 26, 2010 | The Law Office of Philip D. Cave

Andy Martin, Executive Director, Contrarian Commentary, posits that President Obama is not legally president, therefore LTC Lakin has a legitimate challenge to his orders.

Mr. Martin first tells us that:

I am completely independent and impartial in so far as the Lakin matter is concerned. So far as I am aware I have not had any contact with anyone involved in Lakin’s specific case. I am the author of the Obama book “Obama: The Man Behind The Mask” which first raised questions about Obama’s citizenship.

CAAF grant and remand – de facto immunity

May 26, 2010 | The Law Office of Philip D. Cave

Here’s an interesting grant and remand from CAAF.

No. 10-0265/AF. U.S. v. Douglas E. LONG. CCA 37044 (2009 CCA LEXIS 477).

WHETHER APPELLANT WAS DENIED DUE PROCESS BECAUSE ASSURANCES OF AIR FORCE OFFICIALS PROVIDED HIM WITH DE FACTO IMMUNITY FROM PROSECUTION.

Pendergrass

May 26, 2010 | The Law Office of Philip D. Cave

CAAFLog advises that Pendergrass v. Indiana, No. 09-866, is scheduled for the 10 June case conference at the Supremes. Here courtesy of Prof. Freidman counsel for Pendergrass and also of Melendez-Diaz and Briscoe “fame,” is the Pendergrass cert petition. Here also is the state of Indiana’s brief in opposition to certiorari at this link.

The issue will potentially impact United States v. Blazier , 68 M.J. 544 (A. F. Ct. Crim. App. 2008) (yes, that’s the correct volume according to LEXIS), concerning whether surrogate expert testimony complies with Melendez-Diaz. C.A.A.F. partially decided some issues, but:

[W]e order briefing from the parties, and invite briefing from the government and defense
appellate divisions from the other services, on the following:

Up periscope 34

May 25, 2010 | The Law Office of Philip D. Cave

Navy Time reports:

Thirteen junior officers were kicked out of the Marine Corps last week after officials uncovered widespread cheating on a land navigation exam.

All 13 were students at The Basic School aboard Marine Corps Base Quantico, Va., a six-month boot camp for newly commissioned officers. Eight men — including two former football players from the Naval Academy — and five women were administratively discharged May 20 for allegedly using cheat sheets last fall to help them locate boxes stashed in the woods aboard the base, Marine officials said. Two of the 13 officers were prior enlisted Marines.

Stolen Valor

May 25, 2010 | The Law Office of Philip D. Cave

Marine Corps Times reports:

A man who pleaded guilty last year to altering an identification card after he was spotted in the uniform of a three-star Marine general has been charged again with posing as a highly decorated Marine officer.

Sixty-seven-year-old Michael Hamilton of Richlands was charged last week with wearing a Marine colonel’s uniform and three counts of wearing medals, including two Navy Crosses, the second highest award for valor.