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Update at 2030: According to an AP report on the above site, the military judge in the Martinez court-martial issued a gag order for the trial counsel. . . for statements in court. Here is what the AP reported:
Yikes, not exactly career enhancing. This is at least the third warning for the TC's uncontrolled laughter, see prior post here.A military judge on Thursday banned a top-ranked prosecutor from saying anything during a New York soldier's murder trial other than to question witnesses on the stand, saying the attorney had been unprofessional. . . . Martinez's defense attorney Marc Cipriano told the judge that while the defense was questioning a witness, Huestis laughed and made a comment to fellow prosecutor Maj. John Benson about Martinez's access to Claymore mines. . . . Benson said under oath that he didn't clearly hear Huestis but that he was suggesting a question to ask on cross-examination. Benson also said he didn't hear Huestis laugh and was concentrated on taking notes. The judge told Huestis that if he needed to communicate with the other two prosecutors during court, he could write notes. Even then, you will be selective," the judge warned Huestis. "This is your last chance. Do you understand?"
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13 comments:
I really hope this incident simply reads worse in print then it played out in the courtroom. It also begs the question why the government would chose to use a prosecutor of superior rank then either defense counsel in a death penalty case.
Obviously, none of us who aren't there really can know what the real story is. But I know a lot of courts-martial are tried in relatively small courtrooms where the TC is virtually right on top of the members. In the few multi-prosecutor courts-martial I tried, I basically never communicated with the other TC verbally because the member on the end was practically as close to me as I was to my co-counsel.
I am pretty sure that this is being held in Bragg's new courtroom, which I am told is fairly large. Still, if the press reports are true (and I am loathe to believe them) this is pretty bad stuff.
My money says no mistrial, and the CAAF finds the conviction is just fine.
Bill Cassara:
I'm glad to hear that. When I was a judge advocate at Camp Pendleton, I tried most of my cases in a courtroom where, if there was a GCM with a full panel, the member to the far right could actually look down at my notes.
John: The courtroom at Fort Jackson, SC is like that. The TC is probably 3 feet from the last panel member and the witness is even closer. It is so bad some MJ's are refusing to try cases there.
Heresy! CPEN has nothing but spacious and cathedral-like courtrooms. The converted Quonset hut at 5th Marines is identical to any federal court in this country.
I hear the converted quonset hut at 5th Marines has been supplanted by a fancy schmancy legal office that is now at Camp Horno.
Because of budgetary constraints they had to cut the schmancy.
I hope this post is not misconstued as advocacy for a judicial circus, but what is wrong with a laugh? If what was said preceding the laugh was funny, absurd or ironic, then a laugh may proceed. Of course, the laugher laughs at his own risk. If he is perceived as obnoxious or unprofessional, that hurts him. Unless the laughing is persistent, loud, long-lasting, etc., I'm not sure the MJ must enforce stone-faced silence in the courtroom. Again, we would have to be there to make these judgments, so I say this with just a touch of devil's advocacy. And passing notes? That's work product and communication between attorneys. Nothing wrong with it...unless they are giggling like 5th grade girls. Suggesting a question to co-counsel is perfectly reasonable. Seems to me its not the MJ's business.
The trial is still taking place in the old courtroom at Bragg.
Anonymous 1306-perhaps because it possible to perceive the behavior as disrespectful, or giving the defense a bone for appeal, or ..
In a civilian case I tried, the judge called us outside the hearing of the jury and read me and my client the riot act because he thought my client was smirking and that it could influence the jurors perception of the witness unfairly. He wanted them to judge the demeanor of the witness not my client.
I must admit that I was so focused on the witness being examined by opposing counsel and taking notes that I did not notice. But, it has been my experience that judges in either civilian or military courts get very unhappy with anything they perceive as mocking another participant. [Even though they will tolerate a fair amount of showboating.]
Anyone who has practiced in one of the gun clubs for any amount of time has encountered some humorous situation. For example, I read the following closing in a ROT for a guilty plea for male–on-male sexual assault:
TC: In this case Private Smith thought Private First Class Jones had a first-class set of privates.
(The names have been changed)
That being said, if the TC in a death-penalty case is laughing, or commenting, to the point the MJ is aware of it; there is a problem. Why jeopardize a case wherein two officers were killed in the service of our nation? The MJ should have ordered the TC to read US v. Quintanilla 50 times.
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