Monday, November 26, 2007

Capital writ appeal

On 14 November, CAAF docketed a writ appeal in the capital case of Martinez v. Henley, __ M.J. ___, Misc. No. 08-8002/AR (C.A.A.F. Nov. 14, 2007). (The docketing order indicated that the writ appeal had been filed on 5 November.) I can't find ACCA's opinion or order in the case.

On 15 November, CAAF extended GAD's reply time to 30 November.

I understand that the writ appeal presents four issues: (1) whether the accused is entitled to a new Article 32 investigation due to a denial of a defense continuance request (the military judge apparently reopened a portion of the 32, but the defense is arguing for the whole enchilada); (2) whether it was impermissible for a federal prosecutor to serve as the Article 32 investigating officer; (3) whether the CA improperly considered a "time of war" aggravating factor; and (4) whether the accused is entitled to specially qualified counsel in a death penalty case.

If any Army lurkers have corrections to that account, please let me know. This sounds like an extremely interesting bit of litigation.

2 comments:

No Man said...

Lots of press coverage on this fragging case. Apparently he is a National Guardsman and the defense is looking to move to Federal Dist. Ct.: http://www.timesunion.com/AspStories/story.asp?storyID=637804&category=REGION&newsdate=11/10/2007

No Man said...

Sorry for the multiple posts, but interestingly it looks like the aggravating factors int he court-martial and whether the case should be referred capitally were questiosn for the Art. 32 officer. http://www.thejournalnews.com/apps/pbcs.dll/article?AID=/20071106/NEWS03/711060366/1019. Those steps are not procedurally required but would certainly pre-empt some old underlying systemic challenges in military death case and some new arguments near and dear to my heart regarding Apprendi and Ring v. Arizona.

However, there is an interesting counter argument that w2as made in Fed Dist Ct (withoput success I might add) that if procedural rules don't allow consideration by the grand jury of capital aggravating factors that their consideration and inclusion in the charging document were impermissible. A similar argument might be made about preferral and 32 Officer consideration of military capital aggravating factors.

I also wonder if the Army really thought through that whole time of war thing and the ripple effect on even the smallest UA case. Did they ever amend the MCM to make the default referral non-capital? I don't have a current version, but I think they did.