Saturday, November 01, 2008

Fayetteville Observer's latest on the Martinez capital court-martial

The Fayetteviile Observer's reports on the Martinez capital court-martial at Fort Bragg have become required reading for me. Here's a link to the latest dispatch.

In the event of a conviction and death sentence, it certainly seems that there will be potential appellate issues in the case.


Dew_Process said...

Dwight's observations are probably an understatement.

The MJ's ruling flies squarely in the face of Kyles v. Whitley, 514 U.S. 419 (1995), where the Court held inter alia that "the defense could have laid the foundation for a vigorous argument that the police had been guilty of negligence." Id. 447; and "Since the police admittedly never treated Beanie as a suspect, the defense could thus have used his statements to throw the reliability of the investigation into doubt and to sully the credibility of Detective Dillman, who testified that Beanie was never a suspect...." Id.

Perhaps the bigger question is, considering that this is a capital case, why do Military Judges persist in doing just plain stupid things? Kyles has been the law since 1995, and there is a large body of both civilian and military precedent following it.

This, coupled with the failure to provide a meaningful sanction/relief [other then yelling at Trial Counsel out of the members' presence] on the mistrial motion, pretty much demonstrates that this train is going down the retrial track.

The fact that the MJ is bored and the fact that they've still got a boatload of witnesses left, should be irrelevant. But, the timidity of most Military Judges to use common sense versus being slaves to "the docket" is becoming more and more problematic for those of us who frequently try military cases.

If there's a conviction on the premed murder cases in Martinez, there's a high probability that he'll get death under the circumstances, so as MJ, why screw around and limit the defense?

Answering my own rhetorical question with another, could it be that there aren't enough qualified Military Judges to go around? Here, the MJ, Steve Henley went from a complex Military Commission case [where he suppressed a confession as the product of torture] one week, to beginning Martinez the next.

And requiring the Defense to get "pre-approval" before asking bona fide cross-examination questions, is not only dumb, but guaranteed to slow the process down even further....

Anonymous said...

The military shouldn't be doing capital cases -- they just can't get them right. Martinez will end up getting a second trial - just like Kruetzer and perhaps more shocklingly Walker who's getting his second trial 16 years later. Retrying a 16 year old case will be a challenge the military prosecutor simply won't be equipped to handle and I've heard the Marine defense bar is stacking the deck and putting an experienced former judge as Walker's DC.

Dew_Process said...

Anon 0138: I agree, as currently constituted, the military probably should get out of the capital case process. And before we go too far, I've been counsel in 2 military capital cases, neither of whom received death, and I've consulted on a number of others.

I've also been involved in my Reserve capacity, in advising my SJA on the propriety of a potential capital referral. So, I've seen this problem from differing angles.

I think that from the Defense side, there is a sufficient cadre of RESERVISTS with substantial death penalty experience, e.g., Dwight and others, so unlike some of the early post-Furman cases, death-qualified DC are no longer the problem.

I'd say SJA's are the underlying problem because they are "close to" the case, have Trial Counsel itching to "fry the SOB" and neither have a clue as to what they are getting themselves into, other than proving to their bosses and convening authority that this guy "deserves to die."

A better procedure might be to have any realistically probable capital case be referred to TJAG for a special Pre-Trial advice as to the capital referral issue, taking into consideration the facts of the case, the available resources and personnel of the service, to include qualified military judges - who account for much of the litigation in military capital cases.

And, don't forget Specialist Ronald Gray, on death row now for 20 years. Bush signed the death warrant last July:

The last I heard, and Dwight may have newer information, is that his counsel were now preparing a federal habeas. One, in my opinion that's got a reasonable chance of dragging the case out another 5 years. [Disclosure - I wrote an Amicus Brief on Gray's behalf when the case was last at SCOTUS]. Gray was sentenced to death by a 6 person panel, which his defense counsel objected to. The Convening Authority had detailed 15 members originally.

MJ: Well, I interrupted my thought merely because if the government were to be of the mind that they wanted to have twelve members, I certainly wouldn't contest it. [emphasis added]

TC: We are not, Your Honor.

MJ: All right. Based upon the rationalization advanced previously, the motion for requirement of at least twelve members is denied. [R. 770].

Subsequent to the denial of cert by SCOTUS on this issue, Congress of course amended the UCMJ BACK to what military law had been since the time of George Washington, at least a panel of twelve.

We can [and not doubt do] disagree on whether Gray should get the death penalty, he's been in military confinement for 21 of his 42 years - and was independently sentenced to 3 consecutive life sentences in State Court for other offenses. But, 20 years later?

We can now relitigate much of Gray via the federal habeas process.

Anonymous said...

Isn't this the same judge who ruled that if Col Murphy was convicted he could only be sentenced to no punishment because the White House refused to provide classified information on his duty performance?

Dew_Process said...

Anon 1049-- You got it, same MJ.

Anonymous said...

A bunch of critics on this blog, but I'd venture a guess not a one has ever been charged with PROSECUTING a capital case. Easy to snipe when you've never had the responsibility of speaking for the dead...

Dew_Process said...

Anon 0747 - wrong! Been there, done that too! But, I wanted my convictions fair and FINAL, not in litigation for 20+ years. That's what this thread is about.