Tuesday, January 22, 2008

Fort Bragg to try three capital courts-martial this summer

Here is an interesting Army Times article reporting that Fort Bragg will try three capital courts-martial this summer. For comparison purposes, that's one more capital case than the entire U.S. Army tried in 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, and 2007 combined.

This confluence would appear to heighten the importance of resovling the counsel qualification issue that is currently pending before CAAF in the Martinez writ appeal, which we previously discussed here and here. See Martinez v. Henley, __ M.J. ___, Misc. No. 08-8002/AR (C.A.A.F. Nov. 14, 2007).
Posted by Dwight Sullivan at 10:04 PM
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9 comments:

Anonymous said...

x


CAAFlog,
Dumb question: What are the experience and/or training requirements for the defense lawyers in a military capitol case?

Wed Jan 23, 04:10:00 PM EST
Anonymous said...

...besides spelling "capital" correctly.

Wed Jan 23, 04:12:00 PM EST
Dwight Sullivan said...

That's what the Martinez petition for extraordinary relief might tell us. :-)

Seriously though, that's a difficult question to answer. While the 1989 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases were adopted with language suggesting their inapplicability to the military services, definitional note 2 of the 2003 revised guidelines indicates that the current guidelines are intended to apply to the military.

One must then go through each service's regulations to see the extent to which ABA Guidelines are directly applicable. To the best of my knowledge, no court has said that a service has adopted the Guidelines, but I would expect to see more litigation of that question. If a service has adopted the ABA Standards for Criminal Justice and the ABA Standards incorporate the ABA Guidelines, then are the Guidelines binding on that service? It seems that there's a very good argument that they are.

Wed Jan 23, 07:18:00 PM EST
Anonymous said...

Few, if any, Navy lawyers would remotely have the required experience to defend the case.

But hey, if you can be the SJA of the airbase, you can do miljus right?

Thu Jan 24, 12:36:00 PM EST
Anonymous said...

Does anyone have any views on why the SJA shop or the convening authority at Fort Bragg (Commander, XVIII Airborne Corps and Fort Bragg) is so anxious to try three capital cases all at once?

They were obviously emboldened by their win in the Akbar case, but from a practical standpoint, capital cases are a huge drain on SJA personnel as well as the GCMCA’s garrison operating funds. They are going to pay hundreds of thousands, if not millions, of dollars for mitigation experts for death sentences that, in all likelihood, will never be executed.

(Note: the XVIII Airborne Corps managed to fund US v. Akbar with Operation Iraqi Freedom contingency operation funds, even though the entire trial occurred at Fort Bragg – they may be doing the same in the Martinez case).

Thu Jan 24, 01:06:00 PM EST
Anonymous said...

Can a detailed defense counsel raise a red flag and bring a pretrial motion saying, "I am not qualified to defend this capital case, your Honor" ?

Could he or she cite the ABA's suggested qualifications and state that he or she does not meet these qualifications?

Thu Jan 24, 04:09:00 PM EST
Jason Grover said...

Not that I am an authority, but I have filed both motions to appoint qualified counsel and motions opposing the release of qualified counsel citing my own lack of qualifications in two death-penalty cases. I would have to look at the guidelines again - I haven't looked in a while - but I may be qualified now (having served under a qualified lead counsel and practiced in criminal appeals for three plus years). But in any event, I have filed those motions.
I also (because smart people pointed me in the right direction), cited the federal standards for representation in federal appeals and argued Article 36 made those applicable to court-martial appeals. Alas, my motions have file to sway anybody. Perhaps further evidence of my lack of qualifications. . . . .

Thu Jan 24, 04:49:00 PM EST
Anonymous said...

This all misses the point.

Sat Jan 26, 08:17:00 AM EST
Dwight Sullivan said...

Which is . . . ?

Sun Jan 27, 10:07:00 PM EST

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