Tuesday, January 27, 2009

Exciting news: NIMJ announces Cox Commission II

NIMJ announced here that Senior Judge Walter T. Cox III of the Court of Appeals for the Armed Forces is convening a second commission to examine the military justice system. The first Cox Commission's report is available here. The second Cox Commission is co-sponsored by NIMJ and the ABA Criminal Justice Section's Military Justice Committee.

The announcement sets out the commission's purpose and plan:

The purpose of the Commission will be to examine the current operation of the military justice system and consider whether the Uniform Code of Military Justice is meeting the needs of the military services to provide an efficient and fair way to insure good order and discipline while also serving the criminal justice goals of a democratic society. The Commission will submit its report to the President, Congress, the Department of Defense, and its sponsoring organizations. . . .

The Commission will solicit ideas and suggestions from civilian and military attorneys, military commanders and non-commissioned officers, bar associations, law schools and groups with special interest in military matters and from the general public. Every effort will be made to facilitate public participation, including a website or blog and at least one public hearing.
The lineup for the second Cox Commission is star-studded. In addition to Judge Cox himself, the commissioner members are former 4th Circuit Chief Judge Billy Wilkins, Professor Steve Saltzburg of GWU, Professor Scott Silliman of Duke Law, former Judge Advocate General of the Navy RADM Donald J. Guter, former military commissions Chief Defense Counsel Will Gunn, GWU Law Professor and D.C. City Council Member Mary Cheh, retired Army Major General William L. Nash, and retired Army JAG Colonel Joyce Peters. The vital position of commission reporter is filled by two luminaries -- Professor Beth Hillman of UC Hastings Law (who was the first Cox Commission's reporter) and Professor Vic Hansen of New England Law.

We will follow the commission's work and will post a notice when the commission's public hearing is scheduled.


Anonymous said...

Great news! Scott Silliman is a retired AF JAG Colonel who I believe was at one time, the Chief AF Trial Counsel.

Anonymous said...

Does anyone suspect new ground will be broken here or will it be a re-hash of the Cox I? If new ground, where do you suspect it will be?

Anonymous said...

Not sure this link will work, but if you are going to post a link to the old report, why not post a link to the USAF article that replied to the report?


Anonymous said...

Other than Silliman, this is an ACLU panel. Didn't know Don Guter could spell military justice.

Anonymous said...

Here's an idea to start with. Eliminate CAAF and send the cases to the Federal or DC circuit.

If not eliminate CAAF, reduce the number of judges back to the original 3. The court's case load doesn't justify 5 judges.

Anonymous said...

Wilkins was a Reagan appointee, so he is probably fairly conservative, but he is from SC, like that nut case Lindsey Graham.

Anonymous said...

I can only hope they will get serious about modernizing the punitive articles of the UCMJ to bring them more in line with modern penal codes. Many of the punitive articles were based on Maryland laws--it would be interesting to compare how Maryland's criminal laws have changed over the last 60 years to how the equivalent punitive articles in the UCMJ have changed during the same period.

Anonymous said...

I hope they don't meander down the road of administrative discharges and Feres Doctrine again. I'd say Cox I experienced a little mission creep.

Anonymous said...

I'd like to see them consider mandatory minimum sentences/sentencing guidelines to confine the discretion of the sentencing authority.

Anonymous said...

I am pleased my colleague Beth Hillman, who, btw, clerked at CAAF and has co-authored a book with Col. Sullivan and Mr. Fidell, as the repeat reporter for Cox II. I will be reviewing Cox I to see what has happened with those recommendations.

Anonymous said...

Why don't we get serious and permit Alford pleas? Also, is there any reason why military personnel get mandatory review of their guilty pleas when similarly situated civilians waive appeal rights upon entering a plea of guilt? They waive many constitutional rights by pleading guilty, why not remove a statutory right? Of course CAAF may be struggling to find work.

Anonymous said...

Or, why not at least allow a waiver of appellate rights as part of a PTA?

John O'Connor said...

I swear to God the last two anonymous posters are not really me.

Christopher Mathews said...

Sure, John. I notice though that no one has ever seen you and the last two anons together. Verrry suspicious.

Anonymous said...

It is just John's attempt to make it look like more people agree with him. We normally have a word for that, but I'll let ya'll figure it out.

John O'Connor said...

Well, from this thread, there's apparently at least three of us.

Anonymous said...

We are legion...

Anonymous said...

I bet john o'connor has a "Rush is right" bumpersticker...

Anonymous said...

Whatever his bumper sticker may say, if John is for Alford pleas and either eliminating or allowing waiver of mandatory appellate review for guilty pleas, I’m going to get a “J O’C is right” bumper sticker for my Hummer.

John O'Connor said...

Anon 1212:

Actually, I have three Syracuse University window clings, one Marine Corps sticker, and one Washington Nationals sticker (I think).

It sure is easy to cast about juvenile labels on people (behind the cloak on anonymity) simply because they think appellate resources are better spent on handling appeals from contested cases. By the way, if I remember correctly, that known Limbaugh-phile Dwight Sullivan largely agreed with the law review article in which I made this proposal.

Anonymous said...

Jim Boeheim's a nerd.

John O'Connor said...

Anon 1523:

Have you no decency?????

Anonymous said...

I only question the Nats sticker. But at least it is better than a Wizards' anything.

Anonymous said...

The right to appeal "guilty" pleas is because there are too many Defense Counsel, military and civilian, who do not go to crime scenes, who do little or no investigation or research, and if the Accused says, "yes, I did that" as alleged in the Specification, then the PTA talk begins.

I say that because I've got a Record of Trial before me on an Art. 92, plea of violating a lawful general reg. Good colloquay as to the facts, the only problem is that the "conduct" in question happened 2 months before the effective date of the reg and the prior version of the regulation did not cover the scenario at all.

You can't waive appellate review in advance, because of the contested nature of sentencing. There's no way to guarantee no problems unless the government agrees not to put on any evidence, which they can't.

But, you CAN waive appellate rights as part of a POST-trial agreement.

Anonymous said...

We can solve that by making military sentencing more like sentencing in the civilian sector. Hey, isn't that what everyone is always pushing; to make us more like the civilians? Or is that only when it is to the benefit of the accused?

Anonymous said...

Please, having a fair amount of time in the civilian sector the DC are no better nor worse than military. What would a "post trial agreement" look like and who would sign it? The CA who already acted and sent the ROT to the CCA? Makes no sense. And your anecdotal case doesn't paint all DC the same.

Anonymous said...

Don't ask any of the rightwingers...cough...J'OC...cough... to consider any of this - they only like things that keep the convictions intact. Appeal is a bad thing in their mind. Anyone who's served as a defense counsel and seen the abuses by overzealous prosecutors (I'm sure some of whom post here) knows why we have mandatory appellate review.

Anonymous said...

And the left wing defense counsel all become the government's best friend when the appeal is IAC. They are breaking down the door to submit an affidavit. Overzealous prosecutors? How many cases are resolved by plea? That is, to refresh your memory, where the accused admits each and every element of the offense(s). Those that aren't resolved by pleas are either aquitted or convicted by over zealous members or MJs. And how is appellate waiver a bad thing when it is knowingly bargained? Or do accused actually lie in the Care inquiry trying to get appellate relief? That is a great strategy.

Dew_Process said...

ANON 2037 - in the interests of CLE, Post-trial Agreements were given CAAF's imprimatur in U.S. v. Dawson, 51 MJ 411 (CAAF 1999). See also US v. Dunbar, 60 MJ 748 (Army CCA 2004). Sometimes much better deals are possible after "the heat of battle" has died down, and a screwed up record is staring the SJA in the face.

And, regardless of civilian counsel, if you read the legislative history of the UCMJ, mandatory appeals were inserted because the lack of qualified counsel (or no counsel in cases) or the lack of time and resources for counsel to prepare.

The origin of CAAF's "specifying" issues not raised is similar, Appellate Defense Counsel who "miss" key issues that the Court saw in their examination of the Record.

Anonymous said...

Actually, in my experience, I've found defense counsel to be much more representative of all ideological perspectives. They are a fair bunch, for the most part. Prosecutors, on the other hand, are, almost to a man, right-wing extremists who are only in it for the "kill"...justice be damned.

Anonymous said...

Anon 1923:

"But, you CAN waive appellate rights as part of a POST-trial agreement."

I'm intrigued, in light of CAAF's decisions in Dawson and Pilkington, but how do you reconcile your assertion in light of RCM 1110(c)'s prohibition ("No person may compel, coerce, or induce an accused by force, promises of clemency, or otherwise to waive or withdraw appellate review."

Is the argument that a free and informed offer, originating solely from the defense, to waive review in return for clemency does not constitute compulsion, coercion, or inducement prohibited by the rule, in a manner analogous to our earlier pre-trial agreement practice?

Anonymous said...

ANON 2131 - you got it. That's the premise.

Anonymous said...

My experience in post trial agreements is if the case gets screwed up in processing. But since the accused can't waive appellate review until after the CA acts what good is it? The CA has sent the ROT to CCA. Once it arrives there the CA has lost power to modify.

John O'Connor said...
This comment has been removed by the author.
Anonymous said...

Anon 2152:

Remember that the defense has up to 10 days after the convening authority acts to submit a waiver of appellate review that would be valid.

The details of a post-trial agreement to waive review might still need some more work, but it doesn't appear as though it would any change in the UCMJ or MCM.

And, it just might be the way for the defense to do an end run on the President and the courts who've decided for themselves what's in the best interests of our clients.

Viva, Mezzanatto: We should be able to sell anything we can give away!

Anonymous said...


I understand why mandatory appeal was created, but those times are long gone. The only issue that could remain is inexperienced TDCs, but you find them in the civilian sector as well. Additionally, since appx 70% of all cases are the equivalent of misdemeanors, and then 90% of those are guilty pleas, why are wasting the taxpayer's money (especially when it can go to stimulate the economy) to review whether Seaman Smuckatelli's UA was actually the "going from" variety but the military judge conducted the care inquiry as a "failure to go?"

Dwight Sullivan said...


You wrote:

"To be clear, I fully support the right to a vigorous appeal by those who actually contested their guilt at trial . . . ."

Does that mean you would support giving an accused who pleads guilty, is convicted, but doesn't receive a punitive discharge and/or a year or more of confinement a right to appeal the conviction to the appropriate CCA?

Cloudesley Shovell said...

Perhaps you meant to say "pleads not guilty" in your hypothetical Q to JO'C.

Anonymous said...

I can't speak for John, but I would recommend removing mandatory CCA review of cases where, after the CA takes action, no findings of guilt that were contested at trial remain. That way the CA could disapprove contested findings (provide meaningful relief, as appropriate) in those cases where the accused contests charges as a means to get review. For example pleading guilty to rape, murder, etc., but contesting the 6 day UA. I would make the CA’s action here subject to my discretionary review in para 3 below.

I’d also wouldn’t object to lowering the punishment level that gets automatic review, maybe something akin to the old SPCM punishment max, so if on contested charges the guy gets at least confinement for 6 months and/or a BCD, that would warrant review if it was a contested case. Only those folks who had contested their charges, and received a punishment over a certain amount would get appellate attorneys assigned to them.

The rest would have discretionary review, however, like going to BCNR, court of claims, and federal courts to enjoin the Govt from executing an administrative discharges, etc., they would be either going pro se or would have to hire civilian counsel. If CCA granted the petition, then appellate counsel would also be assigned. The rest who plead guilty would get the standard Art. 69 review, which also allows for meritorious issues to be sent to the CCA’s by the JAG.

Last, as a measure to give a warm and fuzzy to folks, as an interim measure you could have this apply to SPCMs only, if you think all GCMs should be reviewed. I wouldn’t do that, but it is a thought.

That way scarce resources would be used on those cases where the appellant maintained his innocence and a contested record exists. From the appellant’s point of view: If I was charged with a crime and I contested the case, but was ultimately convicted, I would want to think that my appellate defense counsel didn’t have 20 other clients gobbling up their time, who all plead guilty and in the vast majority no errors were committed or at best there is a minor error in the SJAR or some other trivial matter. Now it may not seem trivial to that other guy (heck depending on the result, cash money could flow back into his coffers), but if he wanted more than a cursory review of his case, he should not have waived all his rights and plead guilty.

Anonymous said...

"Does that mean you would support giving an accused who pleads guilty, is convicted, but doesn't receive a punitive discharge and/or a year or more of confinement a right to appeal the conviction to the appropriate CCA?"

But that would expand appellate review beyond what it currently is...that's not good at all. We're trying to limit servicemembers' rights here, not enlarge them. Bad idea for sure...

John O'Connor said...


To answer your question directly, I don't know. There are finality concerns involved any time an appeal is allowed from any punishment, and those concerns increase in force as the quantum of punishment on the other side of the scale decreases.

To put it another way, do I think someone who pleads not guilty at NJP should be able to go to a CCA? No. The allowed punishment is too low to justify a CCA review. Summary court-martial? No. Should there be some jurisdictional level of punishment required at a SpCM or a GCM? Surely, but I can't really say if the current line is right or wrong. I would need to know more about the number of such cases, how many involved not guilty pleas where a conviction issued, etc. I will note that allowing a CCA appeal brings with it (presumably) the need for verbatim transcripts and necessarily diverts appellate counsel from cases with more serious sentences. Those are all things to be weighed.

Do I think the accused who pleaded not guilty and got convicted (but with a currently sub-jurisdictional sentence) has a greater moral claim to an appeal than the accused who pleaded guilty with a PTA and got a BCD or confinement for a year or more? Absolutely.

By the way, you're quoting from a post I deleted five minutes after I posted it as poorly expressed and, well, arguably whiny (and which probably was only seen by the admins). That's sort of dirty pool ;-)

Anonymous said...

Anon 0759,

I think your question was directed at me. I'm saying that if they contest and the punishment is a certain level (I'd recommend no lower than the old SPCM max (at least 6 months or BCD), then they get review. But that is for Congress to decide. I'm not saying that it needs to be done that way, but it could be a little soothing balm for those members of Congress who may be reluctant to do this in the face of complaints by parties with an interest in the matter.

If I could do it myself, I’d say keep the current Art. 66(b) punishment thresholds the same.

Anon 0651

Anonymous said...

Why I think pleas should be reviewed:

In a SPCM dive, the accused gets 3-9 months and a BCD. Were Johnny or Jane in civilian court for a non-violent misdemeanor, in most states they would see probation and likely be able to expunge the conviction in a relatively short period of time. There is no such remedy for the service member.

I am not saying we should have probation or expungement [well, who knows? but that is another conversation] but the lifetime stigma of a BCD and the indelible conviction record is sufficient reason that these pleas deserve review.

I do not buy the "the MDC aren't good" reason. Have you seen what happens with the public defenders in a civilian misdemeanor court? Some MDC are good, some are not, kinda like the rest of the legal world.

Cloudesley Shovell said...

I humbly submit that since the military justice system exists solely to ensure good order and discipline in the armed forces, a court-martial conviction should not carry with it any collateral consequences outside of the military.

Exceptions could of course be made for serious "traditional" felony offenses tried at a GCM, but for purely military offenses (including 133 and 134), and anything at a Special, no collateral consequences, period.

Dew_Process said...

I spent 11 years as a senior public defender - the issue there is generally overwhelming caseloads 250+ cases at any given moment, but most are minor misdemeanors or violations.

And, it's not that MDC aren't "good," it's just that very inexperienced ones many times get very complicated cases. That was the point that I didn't articulate very well. In the PD world, you don't generally "move up" to the "varsity" until you have paid your dues in the JV courts, regardless of the side of the aisle you were on.

That's hardly the case anymore, which is the problem that I meant to focus on, e.g., last year in a complex premeditated murder case, the detailed counsel had litigated exactly one contested case total in her 3 year JAG career. That wasn't her fault, but rather a systemic problem. It is particularly bad in the AF because the SJA's "nominate" the next Defense Counsel, rather than having an experienced Defense Counsel interview and nominate such. Thus, they tend to keep their best litigators and get rid of weak or inexperienced ones, who then become the next Area Defense Counsel. I think those are the kinds of things that institutionally get overlooked, but where something like Cox II, can (and should) look into it.

Anonymous said...

Dew: No intent to disparage the fine office of the public defender. Just to point out that frequently misdemeanor dives in a civilian court get much less attention than a SPCM gets.

BTW,re Cloudsley's " purpose of military justice is discipline" -yes,and the dual purpose of serving the interests of justice, Curry v Sec'y of Army, 595 F.2d 873,877.

Anonymous said...


Under my proposal the 3-9 month, BCD accused would get review if he/she decides to contest his/her case. It is really up to the accused. So they get the stigma of the BCD and the effects of a lasting conviction. In my best "Hey pal" (from other thread) impersonation, "if you can't do the time, don't do the crime." Any even if we think that stigma and conviction require appellate review, what are the appellate courts actually reviewing? Cases with errors where no meaningful relief is ever granted. In the rare (and I mean very rare) case where a straight guilty plea results in relief, one thinks that that case could get to the appropriate level of review either through Art. 69 or on petition to the CCA. If CCA denies the petition you could petition CAAF (like some folks are trying to get SCOTUS review for CAAF petition denials).

BTW, I think the interests of justice are always subordinated to discipline. We can get justice without having a military justice system (in almost ever instance) but cannot get discipline with the military justice system. Oh, that also cuts in favor of not reducing convening authority discretion. But you may suspect my take on that.

Last, if an inexperienced DC get a case over his/her head, the have an ethical duty to indicate so to their senior DC and look for avenues for assistance and inquire into other avenues that their client can get appropriate counsel. The system provides options, DC just need to check their ego and do what is right for the client. In my service it is not as systemic as Dew indicates the USAF is.

Anon 0651

Anonymous said...

Dew, I'd disagree with your assertion that the AF deliberately sandbags the ADC position. While occasionally true, it's certainly the rare exception in current practice. Many base level SJAs were former DC and CDC/SDC themselves, and understand the need to send their best.

It also ignores the recent change in the AF to assign and move to the field experienced senior defense counsel, who mentor 5-7 ADCs, triage case loads, and litigate the hard ones. This coming week, the AF funded all ADCs and SDCs to conference for training, but only some TC and a handful of STCs. That's hardly short shrift.

It is a fairer critique to say that the low case volume, compared with other services and across different bases, means some ADCs are very inexperienced, going into or while in the position. And, you never know if a nominee will perform to expectations.

Anonymous said...

Anon 1405,

Interesting observations, particularly in regards to the current low volume of military justice cases. In the Navy, I've seen a wide array of issues crop up from too few cases (as opposed to too many cases, per the public defender challenge, as commented upon other posters). Maybe this would be something the CCII could explore, if it's not still too busy tilting at 20th Century windmills, like random selection of members, sodomy, or fixed terms for trial judges.

Dew_Process said...

ANON 1405 - I will agree, that in the last 6 months, the AF has realized the need to improve the ADC process AFTER years of internal complaints.

I was on active duty for exactly one WEEK when, as the "Junior JAG" I was made ADC - I had 12 contested trials before I went to JASOC and became "certified." Fortunately that process no longer exists. In my personal experience in 2 MAJCOM's over the past 10 years, most ADC's (with a few exceptions) were "non-volunteers" for the position, but took it only as a "square filler" and immediately began working on a follow-on assignment, or were the "weakest link" in the Base SJA shop.

Yes, there are some enlightened SJA's that understand that good defense counsel save them from problems versus creating them. But, those are the ones with significant ADC or CDC experience themselves - and I don't mean to single out the AF, just that I have 30 years of AF experience.

The SDC move is in the "better late than never" category - something again that has been advocated for at least 10 years after the Army model.

One can only hope that with the current reorganization of the AF defense system that it will innure to the benefit of "military justice."

Don't know if you were around about 6-7 years ago, when at Scott AFB, after a dicey Care inquiry, an Accused finally plead guilty to rape. When the Commander, who was in the waiting room - thinking he was being called for the "Good Airman" defense, found out what happened - the plea, he stormed into the SJA's office, demanding to know how and why that could happen, since the complainant - also in his Squadron, had "recanted" her version of events a week earlier. The SJA to his credit, immediately told the TC to seek an adjournment and why.

When the dust settled the next morning [and I was there TDY at the time], the Accused was allowed to withdraw his plea and the charges were withdrawn and dismissed. The Accused and the complainant were then both given Article 15's for "False Official Statements," and when I suggested to the SJA that the Accused probably needed new counsel, he agreed - and withdrew the A-15 as to him instead.

My point isn't really anecdotal war stories, but that there has been a systemic problem for years with the "defense" which now, is finally being addressed.

Anonymous said...

"The UCMJ Commission for 2009 welcomes suggestions and ideas for improving the military justice system from all sources. If you have an idea or suggestion, it adds credibility for the person making the suggestion to take responsibility for having made it and to submit any documents, articles, or research that supports the basis for the suggestion or idea. Please submit your comments, ideas or suggestions to us at: coxcommission@wcl.american.edu."

Walter T. Cox III

Barb Allen said...

I am just a civilian with no military degree, but I have been severely impacted by deficiencies in the military judicial system. In my case, the individual guilty of murdering my husband, 1 LT Louis Allen and his CO, Cpt Phillip Esposito, was acquitted of the murders. After 3 and a half years of court proceedings, delays, and agony for our families, we sat helpessly and watched Alberto Martinez walk out of the courtroom a free man.
There are numerous factors that contributed to this disaster, and many of them were preventable. For example, a great deal of rulings by Colonel Henley are questionable at best and unethical in the professional opinion of legal experts I have consulted. Yet he is untouchable.
Colonely Henley is not the only culprit in this case. There were several people with thumbs in this pie along the way, and they all added their own ingredients to the recipe for disaster.Some did so knowingly and others simply made honest mistakes. But the end result is unacceptable.Our families were told to trust in the system. And we did. That system failed us, failed my husband, and failed my children. I may be able to find a way to live with this if someone showed appropriate levels of concern and committment to remedying the mistakes made, so something is learned from this. Instead, Siobhan Esposito and I have been met with platitudes and condescending condolences when we attempt to set the record straight.The concerns we brought to the military were dismissed by the government, and this country seems to have washed its hands of this case.
Perhaps the Cox Commission will have the courage and honor to address some of these issues.The case of US v Martinez is a motherload of material to learn from.
Barbara Allen

Anonymous said...


I will admit that I do not have as much knowledge about the case as you. I did follow it as best I could. I also read multiple news media reports during and after the trial. I also read the post-trial statements you made to various media. I don't want to come off insensitive, but to an outside observer it appears that your comments are only valid if one presupposes that Martinez did, in fact, do it.

I understand that acquittal doesn't equate to innocent, but your comments are such strong attacks, that unless he actually did it, they may lack merit. I subscribe to the "unless the accused pleads guilty, we have a trial to determine guilt" philosophy. What makes you so certain that he did it? And then could you have some of the legal experts you consulted provide the specific failings in this case? I doubt the Army will be conducting an analysis of the trial for future learning purposes, so the only way it could be done is through you and your experts.

Barb Allen said...

Where to start...
First, I appreciate your wish not to be insensitive. But please feel free to be as open as you'd like.
I understand many people will see my statements as nothing more than the ranting of a bitter and perhaps unbalanced widow.
That is exactly why I make sure not to state anything I can't back up with facts. The facts in this case are far too complex to be listed here. That being said, I am committed to full disclosure of all the facts in a manner that belies doubt. I am dedicating myself to this task for the foreseeable future.
Alberto Martinez is guilty. He knows it. The judge knows it. His attorneys, Major John Gregory and Major Marc Cipriano, know it too.
In time the entire country will know it. The best I can hope for now is for something to be learned from this case. My husband didn't have to die. Captain Esposito didn't have to die. Their deaths could have been prevented, and the verdict in this case should have been guilty. What went wrong is now up to us to show, and we have every intention of doing so.
I am not presuming to be wiser or better than the military judicial system or those who work in it. But every system, just like those that work in it, is fallible. My problem is not in understanding mistakes were made. That is to be expected in all areas of life. But failure to acknowledge and learn from mistakes is something I have no respect for.

Anonymous said...

Mrs. Allen,

Could you please be more specific about the mistakes you are talking about? Also, more generally, what deficiencies did you see with the court-martial process? I, too, tried to keep up with the case, but I only really caught bits of news here and there.

Barb Allen said...

As I mentioned, there were many instances where things went wrong.
One good example is the voir dire process. I'll focus on just a few areas here:
One member was permitted to sit over govt's objection based on that member's questionnaire. The member stated he "just doesn't like CID" . He stated his opinion that CID lies and shared an experience where he personally had been wrongfully accused by CID. In addition to this, the member stated he is opposed to the death penalty.The govt objected for cause and the MJ denied the objection. The govt then exercised its only peremptory challenge against this member. For some unknown reason the MJ did not allow the challenge, in accordance with the defense's objection. I will probably misspell the reason cited but it was on grounds of Batson. The member was African American.
It is ridiculous and insulting to charge the govt with striking a member on grounds of race. Many of the members defense objected to were non-caucasian. Many members already sitting were non-caucasian. This was a capital case based strongly on CID. A member predisposed to disbelieve CID, who only grudgingly conceded he'd "consider" the DP after being badgered by defense, had no place on this panel.
Two other members who wound up on the panel also concerned us: A husband and wife were permitted to sit on the same panel. Both members openly and ardently emphasized opposition to the DP. There is nothing anyone can tell me to make me believe a husband and wife sat on a capital case every day and did not discuss it in the privacy of their own home. The fact these two members were so opposed to the DP makes it more alarming.The wife went so far as to state even if her own son were murdered she would probably not be able to support the DP for the murderer.Again, after relentless questionning by defense, both members finally said they would"consider" the DP if ordered to do so. The legal advisors I spoke with all find the MJ's ruling on those members questionable at best.
There is much more to this case. For all I know you could be one of the defense attorneys. That being so, I prefer to wait for a different forum before expanding further.
I appreciate the interest you have shown, and welcome the opportunity to prove my claims in the future.
Barb Allen

Anonymous said...

Mrs. Allen,
Again, your courage to post is remarkable, and I commend you. And, I too do not want to appear to be insensitive, especially since I have "inside" information, having advised the Defense on a couple of points pre-trial.

But, you need to understand, that many people in the Army have negative / unfavorable opinions on CID, just as there are those who feel the same thing about NCIS and AFOSI. Like most law enforcement agencies, the majority do their jobs competently, and there are a few bad apples that screw things up.

Let me go real radical here - have you considered the fact that you were being fed information that the government thought you wanted to hear?

Were you told that being "opposed to the death penalty" is something that will preclude a member from sitting in a capital trial? If so, you were unfortunately misinformed, because that is not and never has been the law. The test is simply, "will you follow the instructions to consider all authorized punishments?"

When an attorney (regardless of which side) makes an objection for "cause," [meaning "legal cause"] that attorney has the legal obligation to establish both the factual and legal basis for the challenge. The Judge's duty is to ascertain, have they met their burden justifying the challenge for "cause?" If not, it is denied and then you decide if you want to use your preemptory challenge.

A challenge is opposed on "Batson" grounds where the other side is claiming that the Challenge for Cause is not made in good faith, but rather has a discriminatory motive, e.g., race, ethnicity, age, gender, etc. Again, it is the legal burden of the challenger to give a "race neutral" [to use this example] justifying the challenge for cause. If that cannot be done, Batson precludes the use of the preemptory challenge.

I can tell you this, when the Government's case is based almost entirely on CID's "investigation," that is generally a defense counsel's dream, because the CID does not have a great reputation among many in the Army.

A "good" criminal investigation starts with facts and even where there is evidence pointing to a suspect, competent investigators rule no one out as suspects who could have or may have had a motive, and then EXCLUDE them, one-by-one. That did not happen in the Martinez case and was something that the Prosecutors could have and should have been better prepared to deal with at trial because they had to know the nature of the defense.

There were problems of "physical evidence" not matching up with CID claims, something that again, the prosecution got blind-sided by, and the Defense was able to exploit.

I will admit that the "husband-wife" member thing is indeed highly unusual. But, your focus is entirely on the wrong direction for that issue. The defense has no input, first of all, as to the aggregate body of court-members. Those as you know, are [in theory at least] "selected" by the Convening Authority based upon personal qualifications. So, if the Convening Authority, saw fit to put 2 officers, who happened to also be husband & wife on the panel, the presumption is that the marriage issue is irrelevant. What you probably don't know, is that the very legal office that prosecuted Martinez, put together the composite list for the Convening Authority to "select" the potential members.

But, that does not make it illegal or wrong to select them even though they were married.

But, the DP - always problematic in both civilian and military prosecutions - really isn't in play here. It is the fact that the prosecution could not convince that panel of Martinez's guilt as to any of the offenses that he was charged with, or any "Lesser included offenses." That, with due respect, is not a "problem" with that particular panel - but it is highly indicative of a flawed prosecution.

As I indicated, I know one of the military defense counsel quite well and consulted with him on 2 pretrial issues. So, I have a little more "inside info" than the average person, but like the others responding to you, was not present for every day of the trial.

I hope that you understand that the purpose of this discourse is to try and "uncloud" some of the information that you have been given. I'm not sure if your "legal advisors" are military or not [and hopefully not the prosecution, because they are just as biased as any defense counsel will be], but while prosecution prone, the military justice system does not have automatic convictions.

Finally, returning to the thread's topic, you have a unique perspective and I urge you to contact the Cox II Commission - you are an articulate champion of your cause and will make a good witness for your points.

Good luck to you and your family Ma'am - and I say that with complete sincerity.

Barb Allen said...

Thank you for providing me with another view. If I am to have any success in my pursuits it is helpful for me to know the challenges before me. Your arguments (for lack of a better word at the moment) on my points are similar to what I would expect to hear from defense counsel and further proof to me that my challenges have only begun.
Since you are privy to "inside information" I don't need to tell you how I know martinez is guilty.

I know the world moves on and this case is already forgotten. Defense attorneys are smug in their success and the traitor who murdered Lou and Phil is now invincible. I know I am nobody - just a disgruntled victim the defense felt compelled to point out was not even a party in this case. I don't have a law degree. I am not a famous person the public cares about. But I do have a determination to make some sense out of this. Lou cannot have died for nothing and it is now up to me to make his death mean something.
I don't want to monopolize the space on this site for further conversation.
I appreciate the words I know you mean as encouraging. I will submit this case to the Cox Commission, and see if that submission goes anywhere. I am not out to malign the government or the military. I have great respect for those who serve with honor, and I believe they should be protected from the likes of martinez. I also believe what happened to our families should not happen to anyone else, and reviewing this case may prevent that.
Should you choose to step out of the anonymity of this blog, you can e-mail me directly at barballen1994@gmail.com
Otherwise I will check in periiodically to find out when the public session of the Cox Commission will be held.
Barbara Allen

Barb Allen said...

In respect to practicing what I preach I need to clear up a mistake I made last night.
My lack of a legal education, combined with my tendency to become swept up with our case, lead me to incorrectly apply the word "unethical" to the rulings made by Colonel Henley. I stand by my belief that many of his rulings were morally unethical but it has come to my attention the legal world looks upon the word "unethical" differently. It is true my legal advisors found several of Colonel Henley's rulings to be questionable, or even inexcusable in some instances. But the law doesn't always equal justice and it appears Colonel Henley was within legal rights to make those decisions. I still believe he abused his discretionary power in the interest of matters other than the best interest of what is morally right, and decisions on matters where the law allowed him to rule for either side were made in a disproportionate manner for defense. The denial of the govt's peremptory strike and assertion the govt did not prove grounds other than race is a clear example of this.
I realize I am beginning this personal battle with a non-existant credibility level, and will be sure to avoid making this same mistake again. In regard to the thread of this post, however, I do firmly believe the case of United States V. Martinez is ripe with examples of room for improvement in the system, and hope my less the Cox Commission will consider it for review. Before submitting it, however, I will enlist experienced help.

Dew_Process said...

I realize I am beginning this personal battle with a non-existant credibility level....

Mrs. Allen - contrary to your suppositions, you - because you both had the courage to post here, and more so than many, don't hide behind either anonymity or pseudonyms, have significant credibility. Some of us have valid, professional reasons requiring that, please understand.

Don't assume that all Defense Counsel have no respect or sympathy for victims and their families - that is not true, and in fact, detracts from our professional abilities. We just have a totally differing role in the judicial process.

Barb Allen said...

Thank you.
In spite of my distaste for how defense counsel in our case spoke of us in court, and how they spoke of Captain Esposito, I do recognize the necessity for everyone to have a fair and equal defense. In our case I was not afraid of a completely inpartial panel or judge because I knew martinez is guilty and I trusted in the system to support that. We had neither of those, and that system failed for various reasons.

Anonymous said...

Mrs. Allen,
Your call, but would you care to address the prosecution? For those of us following the case only via media updates, the actions of the Trial Counsel which resulted in basically the Judge telling him to "shut up" and only speak when permitted, seemed to damage the government's "general" credibility.

We all know that the media can (and many times does) fixate on minutia, but from the reporting, this seemed like a major event. Your perspective would be most enlightening, both as to how it developed, and the apparent impact it had.

Again, if you don't care to comment on that, we understand. But, in any event, Thank You for your posts and your perspectives. Regardless of which side of the courtroom any of us sit on, if we pay attention to people like you who have valid and bona fide comments and opinions, we will all do our jobs better.

Anonymous said...

BTW how about a shout out for the Gutes? I mean he appeared in a cameo on the TV show JAG. That guy is a rock star!

Barb Allen said...

I wasn't in on the entire situation between opposing sides of counsel. My impression, however, is defense counsel attempted to have LTC Huestic removed from the case pretty much as soon as he arrived. Their arguments began politely and soon disintegrated into personal and professional attacks on LTC Huestis. I don't know what provoked this but I do understand there was a deep seated, mutual dislike for each other and it spilled into court.I think the MJ's order for LTC Huestis to be silent at the table was another example of overindulgence to defense and did in fact distract the panel. One of the successful tactics defense employed was to cast some sort of taint on strategic individuals involved. It was maddening and often insulting but obviously effective.

Anonymous said...

WHY? And Clarify?

"Wed Jan 28, 08:57:00 AM EST
Anonymous said...
I hope they don't meander down the road of administrative discharges and Feres Doctrine again. I'd say Cox I experienced a little mission creep."

Are you possibly an Art 92 violator fearing recall and loss of pension?