I. Whether the lower court erred by finding that the military judge abused his discretion when he denied the defense motion to disqualify trial counsel from further participation in the case.We previously discussed Bradley here.
II. Whether the lower court erred in setting aside the findings and sentence based upon speculation that the trial counsels' continued participation in the case could have prejudiced Appellee, without making any finding that their continued participation did materially prejudice Appellee, as required by Article 59(a), UCMJ.
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Friday, April 10, 2009
Navy JAG files certificate for review
The Judge Advocate General of the Navy has filed a certificate of review in United States v. Bradley raising these two issues:
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2 comments:
As CAAFlog previously noted: "The court concluded that neither Seaman Bradley nor his counsel understood his plea of guilty waived 'his right to appeal the military judge's denial of his motion to remove the trial counsel from his case due to a violation of Kastigar v. United States, 406 U.S. 441 (1972).'" If that be true is NMCCA's remedy of setting aside his GUILTY plea appropriate? I mean it may not be an abuse of discretion, ala Gore, but would not a sentence rehearing without the offending TC be the appropriate remedy?
Commentors on this subject are missing why Kastigar is such a big deal. Kastigar matters because it shadows the critical right for an accused to remain silent. Courts won't meddle with this right...so drastic intervention is needed.
Yes, setting aside the guilty plea was an appropriate remedy. The objection that a prosecutor might not use the information he should not have because such a precaution is "speculation" represents false and feigned naivite. A court need not take such a risk and wait for actual or likely prejudice. That is as much a waste of judicial resources as many of the needless appeals so many decry. No, a sentence rehearing is not adequate because Bradley could decide to plead not-guilty now and let a new, tabula rasa prosecutor take his shot at him. Its the clean and clear choice Bradley should have had the first time.
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