“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?

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.

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.

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.
V/R
Barbara Allen

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.

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.

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.

Walter T. Cox III
Chairman

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.

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.

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.

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

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.

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.

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.

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.

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

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