Senator Diane Feinstein (D-Cal.), has introduced Senate Bill 357, which would expand the Supreme Courts' cert jurisdiction to reach cases in which CAAF has denied review. The bill's text isn't yet available. The bill is co-sponsored by Senators Feinfold (D-Wis.) and Specter (R-Penn.). Senator Feinstein issued this press release about the bill h./t nbm3
This is companion legislation to House Bill 569, which we previously discussed here, here, here, and here.
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Saturday, January 31, 2009
Friday, January 30, 2009
Military judge's ruling granting relief due to DOD's computer monitoring policy
Greetings from the Blue Ridge.
Here is a copy of the military judge's ruling in United States v. Behenna granting relief due to attorney-client confidence and work product privilege issues that arise from the DOD computer monitoring policy's application to military defense counsel. The military judge in the case, who I understand to be COL Theodore Dixon, ordered the Government to make a stand-alone unmonitored laptop available to defense counsel. h/t DP
And here's a copy of a motion dealing with this topic that we posted in December.
Here is a copy of the military judge's ruling in United States v. Behenna granting relief due to attorney-client confidence and work product privilege issues that arise from the DOD computer monitoring policy's application to military defense counsel. The military judge in the case, who I understand to be COL Theodore Dixon, ordered the Government to make a stand-alone unmonitored laptop available to defense counsel. h/t DP
And here's a copy of a motion dealing with this topic that we posted in December.
Fort Campbell ruling on monitoring of defense computers?
I spent the past couple of days at Camp Lejeune where the Regional Defense Counsel, LtCol John Baker, put together an outstanding CLE program. While I was there, I picked up some scuttlebutt that an Army military judge at Fort Campbell has issued a ruling dealing with the application of DOD's computer monitoring policy to military defense counsel. If anyone has a copy of that ruling, could you please throw it over our electronic transom? As always, you can reach us at caaflog@caaflog.com.
Thursday, January 29, 2009
Army Judge Pohl Sticks it to Obama Adminstration [Updated]
Here is a link to breaking news from the WaPo that Army Colonel James Pohl has denied the Obama Administration's request to delay the military commission hearing in the case of Abd al-Rahim al-Nashiri, a Saudi citizen of Yemeni descent. Al-Nashiri is accused of, according to the Post, "planning the October 2000 attack on the USS Cole warship, an al-Qaeda strike that killed 17 service members and injured 50 others."
The article says Judge Pohl found the government's arguments for postponing the arraignment "unpersuasive." Leaving aside how an offense committed in 2000 can be tried in front of a military wartime tribunal, and all the other issues that will set off a $*%# storm in our Comments section, this was a brave move by Judge Pohl, so it warrants mention here.
Update: Apparently the defense did not object to the continuance, though Nashiri's defense counsel, according to the WaPo, here, asked that discovery continue. WaPo added this quote from the military judge on his ruling, "The Commission is unaware of how conducting an arraignment would preclude any option by the administration . . . Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future."
The WAPo gave us this quote, that falls into the understatement of the year (it's early) category, "'It's somewhat of a shock," said Navy Cmdr. Stephen C. Reyes, Nashiri's military defense attorney."
Arraignment means jeopardy attaches, so the convening authority may, understandably, now be considering withdrawal and dismissal of charges or other options.
The article says Judge Pohl found the government's arguments for postponing the arraignment "unpersuasive." Leaving aside how an offense committed in 2000 can be tried in front of a military wartime tribunal, and all the other issues that will set off a $*%# storm in our Comments section, this was a brave move by Judge Pohl, so it warrants mention here.
Update: Apparently the defense did not object to the continuance, though Nashiri's defense counsel, according to the WaPo, here, asked that discovery continue. WaPo added this quote from the military judge on his ruling, "The Commission is unaware of how conducting an arraignment would preclude any option by the administration . . . Congress passed the military commissions act, which remains in effect. The Commission is bound by the law as it currently exists, not as it may change in the future."
The WAPo gave us this quote, that falls into the understatement of the year (it's early) category, "'It's somewhat of a shock," said Navy Cmdr. Stephen C. Reyes, Nashiri's military defense attorney."
Arraignment means jeopardy attaches, so the convening authority may, understandably, now be considering withdrawal and dismissal of charges or other options.
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:
We will follow the commission's work and will post a notice when the commission's public hearing is scheduled.
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 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.
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.
We will follow the commission's work and will post a notice when the commission's public hearing is scheduled.
Monday, January 26, 2009
Grants galore
No, "Grants Galore" isn't a character in an Ian Fleming novel. Rather, it's a description of CAAF's daily journal for Friday, which was uploaded to the web this evening.
We've already noted Friday's grant in United States v. Sanders, No. 09-0013/AF. We learned today that CAAF also granted review with briefing in another two cases on Friday.
In United States v. Marshall, No. 08-0779/AR, the granted issue is: "WHETHER THE MILITARY JUDGE'S FINDING BY EXCEPTIONS AND SUBSTITUTIONS CREATED A MATERIAL FATAL VARIANCE IN CHARGE III AND ITS SPECIFICATION [ESCAPE FROM CUSTODY]."
ACCA's opinion in the case doesn't appear to be available online.
In United States v. Wiechmann, No. 09-0082/MC, the granted issue is: "WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO COUNSEL WHEN THE CONVENING AUTHORITY AND STAFF JUDGE ADVOCATE FAILED TO RECOGNIZE ONE OF HIS TWO DETAILED DEFENSE COUNSEL." Wiechmann is an unusually interesting case involving a CA's and SJA's initial refusal to give effect to the detailing of a highly respected Marine Corps Reserve judge advocate -- LtCol Jon Shelburne -- as a second detailed defense counsel in the case. While the command ultimately accepted LtCol Shelburne as LtCol Wiechmann's counsel, on appeal the defense sought to overturn the conviction because LtCol Wiechmann had been deprived of LtCol Shelburne's representation during part of the case's pretrial development. While NMCCA found that "the CA's initial refusal to recognize LtCol Shelburne as detailed defense counsel burdened his ability to represent the appellant pretrial," the court concluded that these limitations "were not so severe as to constitute a severance of the attorney-client relationship, nor did they rise to such a level as to deny the appellant due process." NMCCA's unpublished opinion in the case is available on its web site here. United States v. Wiechmann, No. NMCCA 200700593 (N-M. Ct. Crim. App. Aug. 14, 2008). (One interesting note is that pursuant to a PTA, the CA suspended all punishment in the case for 12 months. So unless the suspension was vacated, LtCol Wiechmann never served any time and won't be dismissed. But the fortuity of receiving a suspended dismissal made his case eligible for an appeal under Article 66 and further review under Article 67.)
On Friday, CAAF also granted review of three additional cases and summarily disposed of them.
In the highly publicized case of Staff Sergeant John Diamond, No. 08-0365/AR, CAAF on Friday granted review of this issue: "WHETHER THE NAMED CO-CONSPIRATOR, MICHELLE THEER, PAID APPELLANT'S CIVILIAN DEFNESE [sic] COUNSEL RETAINER AND, IF SO, WHETHER THIS CONFLICT OF INTEREST WAS DISCLOSED TO THE COURT." CAAF summarily remanded the case to ACCA for consideration of the granted issue. ACCA's original opinion in the case is reported at 65 M.J. 876.
In United States v. McPherson, No. 08-0651/AR, CAAF granted review of this issue: "WHETHER AN HONORABLE DISCHARAGE [sic] FROM THE UNITED STATES ARMY RESERVE WITH ACCOMPANYING ORDERS, EFFECTIVE AFTER SENTENCING BUT PRIOR TO ACTION BY THE CONVENING AUTHORITY, HAS THE EFFECT OF REMITTING THE BAD-CONDUCT DISCHARGE ADJUDGED AT THE APPELLANT'S COURT-MARTIAL AND LATER APPROVED BY THE CONVENING AUTHORITY. SEE STEELE v. VAN RIPER, 50 M.J. 89 (C.A.A.F. 1999)." CAAF summarily returned the record of trial to ACCA for it to consider the granted issue. ACCA's original opinion doesn't appear to be available online.
Finally, in United States v. Arthur, No. 09-0001/AR, CAAF granted review of this issue: "WHETHER THE APPROVED FORFEITURE OF $1,000.00 PAY PER MONTH FOR FOUR MONTHS AT A SPECIAL COURT-MARTIAL WAS ILLEGAL UNDER ARTICLE 19, UCMJ, WHEN APPELLANT WAS REDUCED TO E-1 AS PART OF THE SENTENCE." CAAF disposed of the issue itself by reducing the affirmed forfeitures to $867.00 pay per month for four months. ACCA's opinion in the case doesn't appear to be available online.
We've already noted Friday's grant in United States v. Sanders, No. 09-0013/AF. We learned today that CAAF also granted review with briefing in another two cases on Friday.
In United States v. Marshall, No. 08-0779/AR, the granted issue is: "WHETHER THE MILITARY JUDGE'S FINDING BY EXCEPTIONS AND SUBSTITUTIONS CREATED A MATERIAL FATAL VARIANCE IN CHARGE III AND ITS SPECIFICATION [ESCAPE FROM CUSTODY]."
ACCA's opinion in the case doesn't appear to be available online.
In United States v. Wiechmann, No. 09-0082/MC, the granted issue is: "WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO COUNSEL WHEN THE CONVENING AUTHORITY AND STAFF JUDGE ADVOCATE FAILED TO RECOGNIZE ONE OF HIS TWO DETAILED DEFENSE COUNSEL." Wiechmann is an unusually interesting case involving a CA's and SJA's initial refusal to give effect to the detailing of a highly respected Marine Corps Reserve judge advocate -- LtCol Jon Shelburne -- as a second detailed defense counsel in the case. While the command ultimately accepted LtCol Shelburne as LtCol Wiechmann's counsel, on appeal the defense sought to overturn the conviction because LtCol Wiechmann had been deprived of LtCol Shelburne's representation during part of the case's pretrial development. While NMCCA found that "the CA's initial refusal to recognize LtCol Shelburne as detailed defense counsel burdened his ability to represent the appellant pretrial," the court concluded that these limitations "were not so severe as to constitute a severance of the attorney-client relationship, nor did they rise to such a level as to deny the appellant due process." NMCCA's unpublished opinion in the case is available on its web site here. United States v. Wiechmann, No. NMCCA 200700593 (N-M. Ct. Crim. App. Aug. 14, 2008). (One interesting note is that pursuant to a PTA, the CA suspended all punishment in the case for 12 months. So unless the suspension was vacated, LtCol Wiechmann never served any time and won't be dismissed. But the fortuity of receiving a suspended dismissal made his case eligible for an appeal under Article 66 and further review under Article 67.)
On Friday, CAAF also granted review of three additional cases and summarily disposed of them.
In the highly publicized case of Staff Sergeant John Diamond, No. 08-0365/AR, CAAF on Friday granted review of this issue: "WHETHER THE NAMED CO-CONSPIRATOR, MICHELLE THEER, PAID APPELLANT'S CIVILIAN DEFNESE [sic] COUNSEL RETAINER AND, IF SO, WHETHER THIS CONFLICT OF INTEREST WAS DISCLOSED TO THE COURT." CAAF summarily remanded the case to ACCA for consideration of the granted issue. ACCA's original opinion in the case is reported at 65 M.J. 876.
In United States v. McPherson, No. 08-0651/AR, CAAF granted review of this issue: "WHETHER AN HONORABLE DISCHARAGE [sic] FROM THE UNITED STATES ARMY RESERVE WITH ACCOMPANYING ORDERS, EFFECTIVE AFTER SENTENCING BUT PRIOR TO ACTION BY THE CONVENING AUTHORITY, HAS THE EFFECT OF REMITTING THE BAD-CONDUCT DISCHARGE ADJUDGED AT THE APPELLANT'S COURT-MARTIAL AND LATER APPROVED BY THE CONVENING AUTHORITY. SEE STEELE v. VAN RIPER, 50 M.J. 89 (C.A.A.F. 1999)." CAAF summarily returned the record of trial to ACCA for it to consider the granted issue. ACCA's original opinion doesn't appear to be available online.
Finally, in United States v. Arthur, No. 09-0001/AR, CAAF granted review of this issue: "WHETHER THE APPROVED FORFEITURE OF $1,000.00 PAY PER MONTH FOR FOUR MONTHS AT A SPECIAL COURT-MARTIAL WAS ILLEGAL UNDER ARTICLE 19, UCMJ, WHEN APPELLANT WAS REDUCED TO E-1 AS PART OF THE SENTENCE." CAAF disposed of the issue itself by reducing the affirmed forfeitures to $867.00 pay per month for four months. ACCA's opinion in the case doesn't appear to be available online.
Defense files opposition to the Government's motion to strike the Rodriguez recon petition
Today the defense filed this opposition to the Government's motion to strike the defense's reconsideration petition in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009). Code 46 now has until next Monday to file a reply.
Denedo Argument Scheduled - Mar. 25
Here is a link to SCOTUSBlog's list of oral arguments for the next session. Denedo is scheduled for March 25, 2009. No other cases are scheduled that day.
Sunday, January 25, 2009
This week in military justice -- 25 Jan 2009 edition
If anyone is aware of something scheduled to happen in the world of military justice this week, please let me know because I sure don't have anything on my radar screen.
This week appears to be the lull before an increase in activity in February, when CAAF will resume oral arguments next week, AFCCA will hold a Project Outreach oral argument next week, and the Respondent's merits brief in Denedo is due at SCOTUS the following week.
Of course, CAAF could issue opinions or grants this week. And some published CCA opinions could be released. But those developments won't be visible until they occur.
On a personal note, I'm on reserve duty for part of this week and I'll be in the mountains at the end of the week. While I now have technological capability to reach the Internet from anywhere (at least in theory), my blogging operational tempo will probably be reduced this week.
This week appears to be the lull before an increase in activity in February, when CAAF will resume oral arguments next week, AFCCA will hold a Project Outreach oral argument next week, and the Respondent's merits brief in Denedo is due at SCOTUS the following week.
Of course, CAAF could issue opinions or grants this week. And some published CCA opinions could be released. But those developments won't be visible until they occur.
On a personal note, I'm on reserve duty for part of this week and I'll be in the mountains at the end of the week. While I now have technological capability to reach the Internet from anywhere (at least in theory), my blogging operational tempo will probably be reduced this week.
Friday, January 23, 2009
NMCCA argument webcast is a total success
The sound quality for NMCCA's inaugural oral argument webcast is outstanding -- better than for CAAF's oral arguments. Both counsel were superb and the bench was hot. Any lawyer who stumbles across the argument online will be impressed with the quality of the advocacy and the incisive questions from the judges. This is a very favorable development.
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