In United States v. Craven, 69 M.J. 513 (A.F. Ct. Crim. App. 2010), review denied, 69 M.J. 209 (C.A.A.F. 2010) the accused pled guilty pursuant to a pretrial agreement that included this quantum: “The approved sentence will not exceed confinement in excess of thirty-six months (36).” The convening authority approved an adjudged dishonorable discharge, 28 months of […]
United States v. Stefan, No. 20081097 (A. Ct. Crim. App. Jan. 29, 2010) (summary disposition) (unpublished), review granted, 69 M.J. 171 (C.A.A.F. 2010) deals with the issue of disqualification of staff judge advocate. An Army judge advocate served in several capacities in court-martial processing. First, she signed the referral of charges and additional charges as “Chief, […]
Jun 7, 2011 In United States v. Comprehensive Drug Testing, Inc., 2010 WL 3529247 the issue was whether the government abused its power in the request and execution of warrants and subpoenas. This case began with a Ninth Circuit panel opinion, then an enbanc opinion issued on August 26, 2009. See United States v. Comprehensive Data Testing, 579 […]
United States v. Kirk, No. Misc. 20100443, 2010 WL 3544577 (A. Ct. Crim. App. July 28, 2010) (unpublished) deals with the issue of who must warn. This case is an Article 62, UCMJ, appeal by the government. The appellee stands charged with one specification of desertion terminated by apprehension. The issue before the ACCA was […]
In Smith v. Spisak, 130 S.Ct. 676 (2010) during the sentencing argument at trial, Spisak’s counsel’s argument was something less than laudatory. He stated, “[s]ympathy, of course, is not part of your consideration. And even if it was, certainly, don’t look to him for sympathy, because he demands none.” Unfortunately for Spisak, at this point […]
In United States v. Diaz, 69 M.J. 127 (C.A.A.F. 2010) the accused served as a judge advocate at Guantanamo Bay, Cuba. While serving at GITMO, he concluded the Government was improperly refusing to turn over names of unrepresented detainees, so he downloaded classified “identifying information” in his office. He printed a hardcopy of this information, […]
In United States v. Mott, 2009 WL 4048019 (N-M. Ct. Crim. App. Nov. 27, 2009) (unpublished) the court found a violation of R.C.M. 701(a)(2) and R.C.M. 701(a)(6)/Brady One morning during breakfast on the ship’s mess deck, Mott walked up and stabbed another service member. He had never met the victim before. Both parties agreed that […]
In UNITED STATES v. ZARBATANY, ACM 37448 (A.F.C.C.A. 2010) Zarbatany received 119 days for PTC credit plus an additional 476 days for unusually harsh PTC conditions. With adjudged confinement of only six months, Zarbatany was released at the conclusion of the trial. At action, the convening authority, properly referencing the credit, disapproved the adjudged forfeitures, […]
Hearsay Mar 10, 2011 Post Crawford v. Washington, 541 U.S. 36 (2004), hearsay was categorized as either testimonial or non-testimonial. “Testimonial” means a statement made under circumstances that would cause a reasonable witness to believe the statement could be used later at trial. If testimonial, then the declarant should be made available for trial to […]