UCMJ Tag Archives — Page 24 of 51 — Court-Martial Trial Practice Blog

Hasan update

May 23, 2010 | The Law Office of Philip D. Cave

The LA Times has interesting piece which essentially posits that both the defense and Congress are being stonewalled in production of relevant information. Usually it’s only the defense.

But even before the gavel comes down, two legal battles are underway to try to force the Army and the Department of Justice to turn over documents dealing with Hasan’s past, particularly his personnel files, his mental health records and other documents that might suggest the government should have known he was a dangerously troubled soldier.

The Senate Homeland Security and Governmental Affairs Committee has taken the unusual step of issuing subpoenas demanding the records as part of its investigation into the shooting spree. What they want to know, said committee Chairman Joe Lieberman (I-Conn.), is "why was he not stopped before he took 13 American lives, and how can we prevent such a tragedy from happening again?"

New ACCA reminder on sentencing

May 22, 2010 | The Law Office of Philip D. Cave

In United States v. Eslinger, __ M.J. ___ (A. Ct. Crim. App. 14 May 2010), the court has set out a useful reminder in two areas: a military judge’s duty to instruct on all issues and the potential problem of defense waiver of instructions, and how to handle testimony that an accused does or doesn’t have rehabilitative potential.

1. Instructions.

A military judge has a sua sponte duty to give certain instructions when reasonably raised by the evidence, even in the absence of a request by the parties. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (citing R.C.M. 920(e)). Mistake of fact is a special defense that a military judge must instruct court members on sua sponte if reasonably raised by evidence. R.C.M. 916(j); R.C.M. 920(e)(3). Waiver does not apply based on the mere failure to request the affirmative defense instruction or to object to its omission. United States v. Taylor, 26 M.J. 127, 128-29 (C.M.A. 1988). However, the defense can make a knowing waiver of a reasonably raised affirmative defense. United States v. Guitterez, 64 M.J. 374, 376 (C.A.A.F. 2007) (citing United States v. Barnes, 39 M.J. 230, 233 (C.M.A. 1994)). For a waiver to be effective, it must be clearly established that appellant intentionally relinquished a known right. See United States v. Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008) (citations and quotations omitted).

CAAF grants

May 20, 2010 | The Law Office of Philip D. Cave

Here are some CAAF grants/issues that should resonate in the field.

No. 10-0332/AF. U.S. v. Yolanda FLORES. CCA S31621. Review granted on the following issue:

WHETHER TRIAL COUNSEL IMPROPERLY COMMENTED ON APPELLANT’S CONSTITUTIONAL RIGHT TO REMAIN SILENT THUS DEPRIVING APPELLANT OF A FAIR TRIAL.

Doctor-Patient privilege

May 20, 2010 | The Law Office of Philip D. Cave

Federal Evidence Review notes the following:

In conspiracy to distribute controlled substances prosecution, physician-defendant could not assert that the medical records of his patients were subject to a doctor-patient privilege because the federal courts do not recognize this privilege under FRE 501, in United States v. Bek, 493 F.3d 790 (7th Cir. July 6, 2007) (No. 05-4198)

It is easy to overlook that the a physician-patient confidential communications privilege is not recognized in the trial of federal question matters. As adopted by Congress, the Federal Rules of Evidence fail to explicitly allow for this privilege.

Failure to report

May 19, 2010 | The Law Office of Philip D. Cave

In United States v. Serianne, the CAAF affirmed an NMCCA decision that a Navy order to report civilian DWI/DUI convictions was unlawful and not enforceable at court-martial.

Navy Times reports:

The Navy’s self-reporting requirement for drunken driving arrests will fundamentally change as a result of a recent military court ruling, the Navy’s top lawyer said.

NMCCA on Quintanilla

May 19, 2010 | The Law Office of Philip D. Cave

NMCCA denied Quintanilla’s petition

in which he sought to have the court overturn the ruling of the military judge at his sentencing rehearing to the effect that Life Without Parole (LWOP) is not an authorized
sentence in his case. Alternatively, the petitioner requested that this court direct the military judge to grant the petitioner’s motion allowing him to waive his right to clemency and parole following sentence, so that he can more easily reach a pretrial agreement with the convening authority.

Proverbs 18-17

May 17, 2010 | The Law Office of Philip D. Cave

The King James (UK) version of Proverbs 18-17 says: He that is first in his own cause seemeth just; but his neighbour cometh and searcheth him.

The King James (Am.) version says: He that is first in his own cause seems just; but his neighbor comes and searches him.

The New Living Testament (2007) says: The first to speak in court sounds right–until the cross-examination begins.

Humor in uniform lawyering

May 16, 2010 | The Law Office of Philip D. Cave

The accused is charged with indecent assault on a complaining witness and rape on another complaining witness.

Member: Sir I’m the unit victim advocate. Individual voir dire continues blah, blah, blah.

Def: The defense objects on implied bias and liberal grant mandate.

Sex offender registration (updated)

May 13, 2010 | The Law Office of Philip D. Cave

There’s been lots of litigation about SORNA. But now, courtesy of Sentencing Law & Policy we learn that DOJ has some recommendations for amending SORNA.

You will be interested to know that this morning the U.S. Department of Justice issued proposed supplemental guidelines modifying several requirements for compliance with SORNA. Many address concerns raised by the states and other stakeholders. They do the following:

Gives jurisdictions discretion to exempt juvenile offenders from public website posting

Provides information concerning the review process for determining that jurisdictions have substantially implemented

Gives jurisdictions discretion to modify the retroactive registration requirement to apply to new felony convictions only

Provides mechanisms for newly recognized tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA

Expands required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations

Requires jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public website posting

Requires jurisdictions to have sex offenders report international travel 21 days in advance

Clarifies mechanism for interjurisdictional information sharing and tracking.

(update) Here is a link to the 14 May 2010 entry in the Federal Register.

LTC Lakin’s contumacy

May 13, 2010 | The Law Office of Philip D. Cave

safeguardourconstitution reports that: “Obama Administration unleashes Army lawyers instead of releasing birth certificate.” This is shameful hyperbole and utterly incorrect.

LTC Lakin is alleged to have committed offenses in violation of the UCMJ. The conduct alleged cuts to the very heart of military requirements of obedience to orders, fidelity to the oath of office, and the need for seniors to set the example. I’m reliably informed that in addition to formal counselings every effort was made pre-preferral to convince LTC Lakin to obey his orders. In the face of such contumacious behavior the Army had no choice but to prefer charges. Enlisted personnel are regularly disciplined, court-martialed, and jailed for the same or similar conduct and who have better reasons for their AWOL. Such a stunning lack of officership cannot pass unnoticed or undisciplined. Neither President Obama nor his administration has any role in this case at all. Should the administration try to get involved they should be told – politely – to butt out.