Tuesday, November 11, 2008

Martinez Capital Court Martial Update

Here and here are the latest from the Martinez case via WRAL in Raleigh. The government rested yesterday and the defense opens its case today. Now I don't know if this was part government's strategy, but let me say this, I think it was an incredibly smooth tactical move for the government to force trial defense counsel (TDC) for an alleged killer of two Army officers to open their case on Veteran's Day. Not the aura you want as a TDC.

20 comments:

Tim Litka said...

If I was defense counsel, I would not want to start the case on Veteran's Day.

Mike "No Man" Navarre said...

TDC parries with a continuance until tomorrow. Nice. See report here.

Dew_Process said...

At first blush I thought, "Huh? What's going on here?" As a DC, you just TELL the MJ that you are not trying a case on Veteran's Day, and cite the federal law making it a federal holiday, etc. There is no emergency or manifest necessity and what's the MJ going to do? Hold you in contempt and declare a mistrial? No.....

I suspect that the defense knew up front that the gov't hadn't brought the Defense witnesses in early, and took the opportunity to have some "egg on" the government's face....

But, what's with this MJ? Is he trying to insure reversible error? Restricting impeachment of an important gov't witness is not the way to have a clean, appellate record!

Bill Cassara said...

Well I certainly wouldn't trust the press reports about what is going on. I know this MJ pretty well and he is one of, if not the, best judges in the Army

Dew_Process said...

Thanks Bill!!

Anonymous said...

I agree with Bill. The media rarely gets these things right. And, if memory serves, the MJ was already ticked off at the government for prior conduct so if the government was responsible for not getting the witnesses to the CM I assume he would have some choice words (which you know the media would pick up on). So it could be any one of several reasons. Not the least of them being that the defense themselves coordinated the appearance of their own local witnesses and did not seek the assistance of the government.

Also, I am unaware of any rule that prohibits the MJ from holding court on a federal holiday and any dismissive attitude of counsel (on either side) should be cautioned. Nor am I aware of any requirement of the MJ to make a record to show emergency. I prosecuted a contested court-martial on 12 September 2001 when the entire base was on lock down. I begged the MJ to continue the case for a few days to make sure the members had their heads in the game and their own commands were properly covered but the MJ declined and we held the case despite the concerns.

Dew_Process said...

Anon - I agree that having to try a case on 12 SEP 01, was in poor taste, but that was a discretionary thing.

Since 1938, then Armistice Day, has been a federal holiday by virtue of federal legislation. New legislation was passed in 1954, and signed by President Eisenhower, changing the name to "Veterans Day." Absent manifest necessity or an emergency, a MJ cannot "ignore" federal statutes - unless the defense consents, explicitly or implicitly.

Knowing one of the DC fairly well, in retrospect I think your guess that the Defense had a couple of local witnesses "on call" and then stood back and said, "that's all....folks" is probably right on the money here.

Anonymous said...

Sounds like the Govt's evidence in this case is pretty weak . . .

Michelle said...

Since when does the military need to justify requiring its members to work on a federal holiday? I was always told we were on duty 24/7.

I was in court at 0730 hours on the Sunday of Memorial Day weekend for a post-trial hearing with court members in Hawaii several years ago.

The prosecution griped and moaned, but that was the only time our sole circuit judge was available.

Anonymous said...

I agree. I would love to be in a court-martial where DC told the MJ they can't go on a federal holiday just because it was a holiday. If that is the case I would stand up at 1630 and leave the court.

Anonymous said...

I used to practice in front of an m.j. who said that if our deployed sailors and marines had to work on holidays, so did we. Dew Process is a little confused.

Anonymous said...

I believe that a past USN MJ, the iconoclast Nels Kelstrom ,would have told the DC, or for that matter, any of the participants to quit whining. [Remembering the midnight hours in such a court].

When I tell other civilian counsel about being in the court room at 2 a.m. in a USMC court, they are stunned.

But, military personnel don't gat paid overtime, so, the courts get to push forward. All the civilian judges are under orders to avoid paying overtime.

Dew_Process said...

I used to practice in front of an m.j. who said that if our deployed sailors and marines had to work on holidays, so did we. Dew Process is a little confused.
___________________________________

Anon 0113: No, I am not confused. I've tried cases wearing flak vests, where the Bailiff was required to keep the coffee pot full and ashtrays empty. And, where a crusty old 0-6, MJ said, "A courtroom is not a chow hall open 24 hours a day."

A judge, military or not, is not a dictator, even though many assume that position with some regularity. Tactical considerations, e.g., in a combat theater, require more flexibility, but that does not mean blind ignorance. If I am on trial in CONUS on a federal holiday, I will object - on behalf of my client, on behalf of the members and on behalf of the Rule of Law.

And once it gets beyond 1700, unless we're trying to finish a witness or there is some other rational reason to accommodate someone or something, I will again object. I've done the 0200 trials, and the only one that benefits is the MJ. I've had MJ's [over both prosecution and defense objection] order members to stand during late night/early morning sessions so that they don't doze off.

That is not the decorum that a court deserves, nor does it foster intelligent, rational results. It is pure selfishness, the classical "rush to judgment."

My point was and is - there was no rational reason at Fort Bragg, where most people had both Monday and Tuesday off, to mandate what is a lengthy trial, going on a federal holiday, unless there were scheduling anomalies to accommodate. Tactically, the Defense handled it well as they made the government look inept by not having witnesses available.

Yes, when in uniform, you do what you're told as Trial Counsel. As a Defense Counsel, either military or civilian you use independent judgment, with the appropriate level of respect, if respect is warranted.

The "iconoclast" Kelstrom did that because he could get away with it. Apparently DC never cited U.S. v. Ward, 48 CMR 617 (ACMR (1974), to him.

Those of us who have been doing this for 30+ years, all have our "war stories." But that does not mean that we should allow them to be repeated.

Anonymous said...

But a lengthy session is different than a session on a holiday. And, is there any indication that the President of the panel said they wanted to go on a holiday?

I am surprised that someone with 30 years experience would counsel counsel to "just TELL the MJ that you are not trying the case on Veteran's Day." Holding the session on a holiday is not an abuse of discretion and that is the standard of review.

Dew_Process said...

Anon 0614: I guess we can agree to disagree. When a military [or civilian for that matter] judge does something that is in violation of a federal law absent an emergency or manifest necessity, that to me is a per se abuse of discretion. Judge's are to uphold the law, not flaunt it. Not observing Veterans Day is particularly egregious in this Vet's eyes.

Just because someone is wearing a Black Robe, does not require me to worship or kowtow to them. I do indeed advise counsel to "just say 'no' to MJ's" - there is a difference between contempt and asserting a position. Do you talk to Court-Members after a trial? I've had MJ's "instruct" counsel to have no "contact" with court members about the case after adjournment.

After making sure my objection is on the record, I ask for the "authority" for such an Order. Once the court is adjourned, the MJ has no inherent authority, unless there's a post-trial Article 39a session. Besides, they cannot interfere with my ability to seek clemency recommendations from members.

I suspect that our differing concepts of trial practice, has much to do with differing concepts of zealous advocacy.

Anonymous said...

Although I am somewhat ambivalent about holding court on a federal holiday, dew process makes a good point. Just because an MJ has the power to order late sessions doesn't mean it is good practice. Fighting a war and trying a criminal case are very different. As a judge, I railed against other judges who would conduct trials til midnight and after when there was no emergency requiring it. How would you feel as a parent if your son (or daughter) told you that his (or her) trial started on day 1 at 0800 and went to day 3 at 2000, and sessions went to midnight on day 1 and 2? How would you explain your actions to the Dayton Daily News, the San Diego Union-Tribune, or the Albany (GA) Herald?

Military justice is viewed with suspicion by many and outright hostility by some. The military commissions debacle has not helped. It is as important that courts-martial appear to do justice as it is that they actually do justice. Holding court with bleary-eyed court members and exhausted counsel does neither. And most of the time, there is no good reason for doing so.

Anonymous said...

We all pontificate as to what should be. Bottom line, unless we were there, in the court or reviewing the ROT we can't say why the MJ decided to go on a holiday. I seriously doubt it was to flex his judicial muscle. More like witness issues, courtroom scheduling, members scheduling, maybe that unit was due to (heaven forbid!) deploy and do what the army actually does. So, bottom line, we'd all like what we'd like. If the defense didn't like it they could have writ the MJ. Clearly, according to some they have the law on their side. Or better yet, just not show up, that is the judicially appropriate way to deal with a federal holiday, that was until relatively recent time, designed to remember the end of WW I.

John O'Connor said...

When I was a TC, the military judges basically would let the members decide how late we would go every night. They usually wanted to get back to work so would press on unless a member had something that he had to do that required ending at a certain time.

Barbara said...

I am not an attorney or a member of the military. I don't know the actual identities of any of those who posted comments on this case. I am just the wife - the widow- of Lou Allen. Lt Louis Allen, victim in this case. I appreciate any interest in this case, as it seems to have fallen by the wayside. Lost in the cesspool of current events. What I fail to realize, however, is why the specific debate on being in court on Veteran's Day? Witness availability or not - Two American soldiers were murdered by one of our own. Innocent until proven guilty, I know. But I have been living this nightmare for 3 1/2 years and I believe martinez is guilty as charged. Lou and Phil (Cpt Esposito) are not here to celebrate Veteran's Day. The Panel in this case has shown zero inhibitions about requesting time off or schedule adjustments as needed. I heard no such request for Veteran's Day. The men and women on this Panel have been highly engaged in this case and for all intent and purpose seem to be approaching this duty with respect for the process and an absolute appreciation for the gravity of the situation. Perhaps we would be beter served by understanding why, out of all the judges in the military, a judge in the midst of a capital court martial was selected to oversee a case at Guantanamo. Why disrupt the process in this case - a process that has dragged on for well over 3 YEARS? Is there no other military judge who could preside there? Why THIS judge at this time? To our families it is yet another slap in the face, and a clear signal that this case is far from a priority in the United States military. Were it not for the dedication of the government trial team our families may never find justice.

Dew_Process said...

Ms. Barbara: First of all, sincere condolances. I can assure you that most of the posters on this Blog are attorneys with military law experience. There is no disrespect to you and your family or the Espositos.

The comments about Veterans Day were about whether holding Court on that day was or gave the appearance of either disrespecting our Veterans, when Congress had set aside that day to honor them. Panel members are also entitled to some respect - they have families who may be off from school or work and have personal plans. Most follow the Military Judge's lead on scheduling however.

I agree with you - and commented on it elsewhere here - that it was very stupid to assign this Military Judge to something at GTMO which requires delaying the Martinez trial. There is no case more important than the case that's in the middle of a trial.

Why the GTMO cases couldn't be delayed until the end of Martinez, is a mystery - but informed speculation suggests that the political pressure to "move along" the GTMO trials is intense. That is the sad reality when you have a Judiciary without tenure.