UCMJ Tag Archives — Page 7 of 50 — Court-Martial Trial Practice Blog

AFCCA denies a new trial

September 15, 2010 | The Law Office of Philip D. Cave

The Air Force Court of Criminal Appeals has issued an opinion in United States v. Hull.

The issues on appeal are: whether the staff judge advocate (SJA) erred by advising the convening authority (CA), pursuant to Rule for Courts-Martial (R.C.M.) 1106, that no new trial was warranted and whether the CA erred by failing to order a new trial despite the SJA’s acknowledgement that the appellant had presented new evidence that fell within the parameters of R.C.M. 1210. Further, the appellant filed a petition for a new trial pursuant to Article 73, UCMJ, 10 U.S.C. § 873.

AFCCA denied relief on the merits of the appeal and denied a new trial. AFCCA reasoned that even if the information was newly discovered (AFCCA was not certain it could not have been obtained during pretrial preparations), the evidence would not,

ACCA on post-trial honorable discharges

September 15, 2010 | The Law Office of Philip D. Cave

Here is a link to United States v. Brasington., decided 13 September 2010. It is not unusual for an appellant to be issued a DD214, Honorable Discharge, sometime after a court-martial at which the appellant was adjudged a punitive discharge.

In this case, we are asked, following remand, whether an honorable discharge, effective after this court’s affirming a sentence that included a bad-conduct discharge, has the effect of remitting that discharge. We hold appellant’s administrative discharge was voidable, properly voided, and did not remit appellant’s premature discharge.

This was a rather odd situation because the appellant was an active duty Soldier and it was the Reserve command giving him the discharge. ACCA found that the Commander, HRC-StLouis had no authority to discharge appellant.

Padilla in practice

September 14, 2010 | The Law Office of Philip D. Cave

Here is a training video and handouts from NACDL. This may be helpful with your junior enlisted court-martial clients who are foreign nationals.

In Padilla v. Kentucky, the Supreme Court held that defense lawyers must affirmatively and correctly advise their clients about the immigration consequences of entering a plea and failure to do so constitutes ineffective assistance of counsel. NACDL, in collaboration with the Defending Immigrants Partnership, will present a free live online training to discuss defense counsel’s duty under Padilla and related issues. Expert faculty analyze the Padilla decision, outline the steps defense counsel must take to provide effective assistance of counsel to their non-citizen clients, and provide essential instruction[.]

False confessions

September 14, 2010 | The Law Office of Philip D. Cave

New York Times has this good short piece about false confessions.

New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.

An article by Professor Garrett draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation.

Wuterich sitrep

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

The Atlanta Journal-Constitution reports:

A major Iraqi war crimes case that has dragged on for five years hit another snag Monday when a military judge excused one of the attorneys for a Marine sergeant whose squad was charged with killing 24 Iraqis. The move by military judge Lt. Col. David M. Jones came only weeks before the trial is set to begin on Nov. 2. Jones granted the request by the civilian attorney, retired Marine Lt. Col. Colby Vokey, who asked to be withdrawn because of an undisclosed ethical conflict. . . .

Wuterich’s attorneys have filed a motion that seeks to have the case dismissed, arguing the defense has been compromised by the withdrawal of Vokey, the only defense attorney to go to Iraq to see the scene of the 2005 killings in the Iraqi village of Haditha.

Something to read

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

Swinging a Sledge: The Right to Effective Assistance of Counsel, the Law of Deportations, and Padilla v. Kentucky, August 31, 2010, Joseph Ditkoff

In Padilla v. Kentucky, the Supreme Court decided that the Sixth Amendment’s guarantee of the effective assistance of legal counsel requires that counsel inform his client whether his guilty plea in a criminal case carries a risk of deportation. The Court’s decision significantly expands the reach of the traditional Sixth Amendment constitutional protection afforded criminal defendants via the long-established rule of Strickland v. Washington, and, concomitantly, significantly alters the landscape of what courts will consider to be adequate representation in criminal proceedings. The precise contours of the right, thus expanded, will be left to the vagaries of the common law in both state and federal court to map out. This short article will discuss Padilla and some of its forebears and foreshadowings. As will be seen, the Supreme Court has again left prosecutors, defense counsel, and judges with a somewhat muddy decision that leaves the hard work for later, and for others…

In light of the discussion ongoing about Denedo’s end, I thought this might be an interesting read.

Up periscope

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

The Pittsburgh Post-Gazette has a book review of Richard North Patterson’s new book which is about a court-martial. Yes, it’s about a Army officer who returns from Iraq, kills his former commander, and

As the case unfolds, Mr. Patterson gives the reader a tutorial in military justice as well as the complexities of PTSD. He also makes clear his stand against the war through testimonies from personnel involved with McCarran in Iraq.

The tension rises throughout the court-martial: Will the judge allow PTSD as a defense? Will the jury believe how the war changed not just McCarran, but the man he killed?

LTC Lakin sitrep

September 11, 2010 | The Law Office of Philip D. Cave

The Greeley Gazette reports that:

A retired JAG officer with over 23 years of experience, says the military judge who ruled against discovery for a Greeley Army officer may have derailed the government’s case based on precedent from another high profile case involving a military officer.

Lt. Col John Eidsmoe, a retired Air Force officer who works for former Alabama Chief Justice Roy Moore at the Foundation for Moral Law, said Lakin is “raising legitimate constitutional questions” regarding President Obama’s eligibility to be commander-in-chief.

MAJ Hasan sitrep

September 10, 2010 | The Law Office of Philip D. Cave

News8Austin reports:

Next Thursday Maj. Hasan’s pretrial investigation, Article 32 hearing will reconvene.

According to officials, the session is called a Status Conference Hearing and will address additional preliminary measures. Officials say no witness testimony will be heard during this portion of the hearing. The Article 32 hearing will be held on October 12.

Denedo sitrep

September 9, 2010 | The Law Office of Philip D. Cave

It appears that Denedo’s case is over. On 8 September 2010, the Court of Appeals for the Armed Forces, with C.J. Effron and J. Baker dissenting, denied the filing of a writ appeal petition out of time. The majority writes:

In support of the motion for leave to file writ-appeal petition out of time, Denedo’s counsel explained that he “erroneously believed that this case was governed by Rule 19(a)(1)(B),” which provides sixty days from the date of the decision at the CCA for filing a petition for review with this court.

Appellate defense counsel requests this court suspend Rule 19(e) pursuant to our authority under C.A.A.F. Rule 33, which states “[f]or good cause shown, the Court may suspend any of these rules in a particular case, on application of a party or on its own motion, and may order proceedings in accordance with its direction.” In our view, neither the fact of the previous Supreme Court review of Denedo’s case, nor the Padilla case are relevant to our analysis as to whether there was good cause for a late filing. Counsel’s claim that he erroneously believed that this court imposed a sixty day deadline for the appeal of writ-appeal petitions does not provide us with the requisite good cause for suspending the deadline for filing a writ-appeal.