UCMJ Tag Archives — Page 31 of 50 — Court-Martial Trial Practice Blog

Off we go – another birther case

March 31, 2010 | The Law Office of Philip D. Cave

Family Security Matters reports:

A decorated active duty Army medical officer, Lieutenant Colonel Terry Lakin (selected for promotion to Colonel), is calling upon his chain of command and his Congressional delegation to force President Obama to release his original birth certificate. He is the highest ranking officer to go public over this controversy and in late February, was notified that he is subject to near-term deployment to Afghanistan.

A website, SafeguardtheConstitution.com, outlines his efforts to seek the truth and prepare for his legal defense. You can make a tax deductible (?) contribution to his defense fund here.

Hasan update

March 31, 2010 | The Law Office of Philip D. Cave

KWTX.com reports that:

Defense attorney John Galligan said Tuesday he’s asking the Army to delay the hearing that will determine whether Maj. Nidal Malik Hasan will be tried by a military court for the Nov. 5 shooting rampage at Fort Hood’s Soldier Readiness Center that left 13 dead and 29 injured.

New Army case on discovery

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

ACCA has issued an opinion in United States v. Trigueros, 68 M.J. ___ (A. Ct. Crim. App. 2010). [Post updated to address a CAAFLog point, to add some links, and try to fix some formatting.]

This case involves the common problem of discovery of a victims mental health records. There are two troubling aspects to this case: the trial counsel never made any effort to determine whether or not information responsive to a specific discovery request was available, and when the prosecution has access – as they frequently do – how can it not be a violation of Article 46, UCMJ, for them to fail to turn over the information.

On 9 May 2007, trial counsel responded to the defense discovery request, stating in relevant part “[t]he Government is not aware of the existence of any such documentation regarding the records of the victims, Mrs. [JLC] and Mrs. [SCR].” In fact, trial counsel had not asked Mrs. SCR whether she had attended mental health counseling before responding to the defense discovery request.

Hennis update

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

Two items came across my screen at about the same time.

The FayObserver reports that:

The judge in the court-martial of Army Master Sgt. Timothy Hennis rejected defense calls for a mistrial this morning.

SEAL cases 300310

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

Human Events reports that:

One of three Navy SEALs facing a court martial announced at a rally Saturday that he has passed a polygraph test, casting doubt on the Pentagon’s case against him.

Rep. John Shadegg (R.-Ariz.) who attended and spoke at the rally, told HUMAN EVENTS that “while the lie detector test results won’t be admissible in a court of law and their jury will never know that he passed, it is nonetheless important for the American public to know.

Collateral effects

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

Not all states allow a prior court-martial conviction into evidence. But as the decision in Oliver v. Commonwealth, 60 S.E. 2d 567 (2005), shows, the Commonwealth of Virginia considers a prior special court-martial conviction admissible in sentencing.

In principle, we accept that certain "wholly unconstitutional" convictions can be collaterally attacked and disqualified for consideration during sentencing. United States v. Tucker, 404 U.S. 443 (1972). But, when available, the collateral attack remedy would not be offered on the ground that the invalid UCMJ conviction rested on something other than the "laws of … the United States" as that phrase appears in Code § 19.2-295.1. Instead, the invalid UCMJ conviction would be excluded from trial, if at all, because it violated a higher law of the United States: the Federal Constitution.

In any event, we need not address Oliver’s hypothesis further. He does not raise on appeal any constitutional objections in contest of his UCMJ convictions.

Gitmo cases

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

Guantanamo Bay Detainees in the Courts, an eBook by Leagle.com.

Legal experts will analyze the Guantanamo Bay detainee cases for decades to come, but presented here are the court opinions themselves, unedited and in their entirety, so that readers can review a court’s reasoning firsthand, unfiltered and without bias.

The opinions are in answer to rulings appealed by both the detainees and the U.S. government, as well as other interested parties, from the earliest rulings in 2002 through the end of 2009. While most of the decisions in the collection involve Gitmo detainees directly, other related cases are included for context and to fill out the evolution of how the U.S. courts are handling the laws and policies resulting from the war on terror.

Possession of CP and child sexual abuse are the same?

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

Carissa Byrne Hessick, Disentangling CP from Child Sex Abuse, 88 Washington L. Rev. __ (2010).

Recent years have seen a significant increase in the criminal penalties associated with possession of child pornography. The new severity appears to be premised on arguments that blur the distinction between those who possess images of child pornography and those who sexually abuse children. In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing child pornography increases the risk that an individual will sexually abuse a child, and arguments that those who possess child pornography are abusing children undetected. This Article identifies instances where possession of child pornography and child sex abuse have been conflated, critically evaluates the arguments that promote such conflation, and identifies independent concerns with conflation. Specifically, it argues that blurring the distinction between the two crimes allows us to continue to misperceive child sex abuse as a stranger-danger issue, and that when law enforcement statistics aggregate possession and child sex abuse, then the public may be misled into believing that law enforcement is successfully battling child sex abuse, when that is not the case. The Article concludes that the modern trend of increasing sentences for possession of child pornography ought to be reviewed, and it suggests several possible areas of reform.

February Army Lawyer

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

Here are the military justice related articles in the new Army Lawyer.

Searching for Reasonableness—The Supreme Court Revisits the Fourth Amendment

“I’ve Got to Admit It’s Getting Better”*: New Developments in Post-Trial

SEAL case update

March 28, 2010 | The Law Office of Philip D. Cave

Kate Wiltrout of Virginia Pilot reports that:

Prosecutors handling the courts-martial of two local Navy SEALs charged with not stopping a teammate’s alleged assault on an Iraqi detainee faced another setback Friday.

Cmdr. Tierney Carlos agreed to exclude a statement made by one of the SEALs to the special agent investigating the allegations in September because the agent didn’t advise him of his right to remain silent. As a result, one of two charges against Petty Officer 2nd Class Jonathan Keefe likely will be dropped.