Sunday, April 26, 2009

Prosecutors in Green case move to prevent defense from arguing case should have been tried by court-martial

With the trial on the merits in the capital MEJA case of United States v. Green set to start tomorrow, my guess is that the No Man and I will be compulsively linking to accounts of the trial over the next three to five weeks -- the expected length of the trial. Here's an article from today's Louisville Courier-Journal reporting that the prosecutors trying the case have moved "to bar the defense from arguing [that Green] should have been tried in a military court."


Anonymous said...

I imagine every criminal defendant in Texas wishes he was on trial somewhere else too. It's not an argument to the jury for leniency.

Cossio said...

From what I read in the article it seems that the issue is whether the "jury should consider if Mr. Green should live or die"....Again it seems premature considering they haven't got to sentencing yet.

Conversely can you imagine a Military DC argueing, "Hey, you shouldn't hammer my client because if this was a Civilian case he wouldn't do jail time or even been convicted." ?

The clear answer is this kind of sentence comparision should be barred and ignored period as it is done so many times when a Civilian co-conspirator gets a slap on the wrist while the military counter part gets hammered.

Anonymous said...


While I can agree with your sentiments, you should check out one of the most recent gems from CAAF. U.S. v. Forney, 67 M.J. 271. The minority and one judge in the majority assert that an accused has the right to present evidence and argue that conduct alleged as prejudicial to good order and discipline or unbecoming an officer should not be punished because it is not an offense for civilians to engage in such conduct.

Phil Cave said...

I agree, but that point is limited to a charge under Article 133 (Forney), or 134. That goes to directly attacking the governments case on an element of proof.
Whereas in Green it seems they do want to bring up sentence comparison issues.
And I don't think the defense is necessarily correct in their argument. This might have been referred capital? And couldn't he have ended up with LWOP?
Seems to me the defense is far better off trying to convince a jury who hasn't been to war how dangerous it is, how people only have seconds to react, this didn't happen, his personality disorder, that kind of thing rather than:
"The military doesn't think raping and killing a 14 year old is as bad as we civilians do."
I realize in DP death is different and everything and anything has to be thrown up in the hopes it sticks, but at some point . . . . ?

Cossio said...

I actually remember reading tha

But Forney, where 133/134 clause 3 type offenses is distinguishable from the present case where sentence comparision for a murder spec is inappropiate.

Drug pops, although not normally prosecutable in civilian courts (yes, I know some places like Utah argue for "possesion" in your body when you get a pop) is clearly a crime in the UCMJ and which is codified under Title 10 USC.

Anyways, I would imagine Forney to be used in future appeallate briefs which deal more with crimes concerning clause 3 offenses, and even some type of direct sentence comparision....It'll be interesting to keep an eye on this citation.

Cossio said...

Oh, seems like Mr. Cave already touched on these points, should learn to scroll down more on my tiny little screen. And spell check, and quit referencing "drug pops" in metaphor.

Anonymous said...

Defense counsel generally can't argue jurisdiction to the jury.

John O'Connor said...

Anon 1517:

You're right, but DCs do it all the time (and they should try to the extent they can get away with it).

Arguing on findings that the trial counsel is trying to saddle the accused with "a federal conviction" is often a euphemism for "this case should have been handled at NJP."

Cossio said...

True, True, and True.

Dwight Sullivan said...

If the case goes to sentencing, the jury will almost certainly learn that Green's co-actors were tried by court-martial and weren't sentenced to death. 18 U.S.C. § 3592 provides that in a federal capital case, "the finder of fact shall consider any mitigating factor, including the following: . . . Another defendant or defendants, equally culpable in the crime, will not be punished by death."

Anonymous said...

...Interesting, but if the converse were true, that Mr. Green's trial was delt first and he wasn't sentenced to death....

....What avenue, if any, would the DC in a military court have argueing civilian co-actors did not get a death sentence? Pretty sure I read some cases around those lines, at least in Drug Dealing/Murder for hire cases.

- TC

Cossio said...

Ah, I'm looking here: covers sentencing instructions and comparisions...Particularly in United States v. Barrier. Seems to answer that one. Even an accused making a comparision in his unsworn would invoke a "FRIEDMANN" instruction.

Which then he would then possibly end up like MANFRED