Here is an interesting piece from Human Events about one of the 3 defendants taking a polygraph regarding the case:

At the rally, Operations [sic] Petty Officer 2nd Class McCabe (who faces three charges) said that he successfully passed a professional polygraph in which he was asked if he punched Abed and or lied about it.

Rep. John Shadegg (R.-Ariz.) who attended and spoke at the rally, told HUMAN EVENTS that “while the lie detector test results won’t be admissible in a court of law and their jury will never know that he passed, it is nonetheless important for the American public to know.” . . .

“We really need to look at the policy, how these came about. Because this terrorist was able to make a claim, it has taken [McCabe] off of the line, it has made him incur all these legal costs, it’s made him have to defend his honor, his reputation and his career, at allegations that appear to be very weak. So even if he’s exonerated, he still loses because he’s had to go through all this.”

I’d say I agree with a few of those comments, though have some doubts about others. 

For example, the statement about admissibility of a polygraph.  In light of United States v. Wheeler, 66 M.J. 590 (N-M. Ct. Crim. App. 2008), CAAFlog summary here, which became final when the Navy did not appeal it, here, I would not make that categorical concession.  In Wheeler, a panel of the Navy-Marine Corps Court (binding authority for this case) found portions of RCM 707’s blanket exclusion of polygraph results unconstitutional.  The holding in that case seems to fly in the face of Rep. Shadegg’s unqualified concession.  These congressmen really ought to have a staffer check CAAFlog before going out on a limb about military justice.

12 Responses to “SEAL Court-Martial Cases Update”

  1. Anonymous says:

    When is it okay to break the law? Never, especially if you’re in the armed forces. It doesn’t matter if we might privately empathize. Rules are rules and the law is the law.

  2. Anonymous says:

    No Man,

    To back up your snark, you are going to have to come up with some conceivable way Wheeler could apply to the facts in McCabe’s case to make his polygraph admissible.

    You can’t, because Wheeler has nothing to do with that…and while I agree that everyone should read CAAFlog, you should make sure you have done some homework before unleashing the snarkiness.

    Hint: You may want to start by reading Wheeler.

  3. Phil Cave says:

    I thought the issue in Wheeler related to the defense trying to use the polygraph, or at least the circumstances surrounding it, to demonstrate a false confession? Seems to me there ought to be circumstances where reference to a polygraph might be relevant, such as Wheeler, and a limiting instruction given. I’ve sought that from time to time when asking for a consciousness of innocence approach and instruction.

  4. John O'Connor says:

    I have to say, I agree with Anon 1659. Snark fail.

  5. Anonymous says:

    “Because this terrorist was able to make a claim, it has taken [McCabe] off of the line, it has made him incur all these legal costs, it’s made him have to defend his honor, his reputation and his career, at allegations that appear to be very weak.”

    I thought this “claim” didn’t come from the “terrorist” at all but from another servicemember?

  6. No Man says:

    Hint Anon 1659, neither you or I or Rep. Shaddegg know all the facts. So, none of us should be going around categorically saying any evidence is or is not admissible at his trial–particularly if you are attempting to support the accused and the evidence you are saying is inadmissible is favorable to the accused. Note if you started by reading my post I did not say the polygraph was admissible.

  7. John O'Connor says:

    Rep. Shadegg isn’t quoted as saying that all facts relating to a polygraph are per se inadmissible. He said that the results would be inadmissible. I don’t really need to know much about the SEALs case to reach the conclusion that this statement (that “results” will be inadmissible) is very, very, very likely to be a correct statement of the law.

  8. No Man says:

    And JO’C, how does that help SO2 McCabe?

  9. John O'Connor says:

    I don’t think it does. That’s my point.

  10. Anonymous says:

    Key word “lost his temper”.

    A Navy Seal is trained to withstand the most harsh of conditions. He deserves to be called up for court martial if he became so weak that he couldn’t control his emotions. I wouldn’t want to serve alongside of him, in fact — he just became “the weakest link”.

  11. Anonymous says:

    So these sailors refused NJP and opted for a court martial? The thing that I am getting from the situation is they CHOSE the court martial. Had they went to CO’s mast, their punishment would be less harsh. They could have ended up with a reduction in rank by one paygrade, pay loss, restriction, extra duty, and process for administrative separation. That could have been suspended instead of enforced. Now, they run the risk of ending up with a Big Chicken Dinner, confinement, reduction in rank to E-1. Or a slap on the wrist.

    Either way, this is something that should be handled within the military courts. Outside politics should be left outside. The politicians and former governors have no place in grandstanding.

  12. Dwight Sullivan says:

    No Man, perhaps I’m overly cynical, but I’ve assumed that SO2 McCabe’s supporters have been trumpeting the polygraph news because they don’t believe it will be admissible in court but want potential members to hear about it.