LtCol (and soon to be Col) John Baker recommended today that I read the Canadian military judge’s sentencing rationale in the case of Regina v. Captain Semrau, which Phil “My Liege” Cave posted here, along with his commentary about it here.

23 Responses to “Canadian court-martial sentencing rationale”

  1. ! says:

    Yes but at what point in this transcript did Judge Maksym interject to instruct the defendant that a great man may die a thousand deaths, but a cat has nine lives in toto, pray tell?

  2. Anon says:

    Can we see the French language version?

  3. H Lime says:

    I heard a rumor the JAG is recreating the medieval position of Justice in Eyre specifically for the good judge, and may soon be dubbing him the 2nd Baron Maksym of Effingham…

  4. Anon. says:

    The judge’s sentencing rationale in this case is a must-read for every JAG. While reasonable minds will no doubt differ on the ulitmate sentence, it was firmly rooted in the panel’s findings, the evidence, and–most interestingly–similar cases. One would wish that every judge, panel member, commander, and SJA is as thoughtful in their deliberations on justice matters. Our system, however, does not require such rigor–what a shame.

  5. Anon says:

    You heard correctly H Lime – as a matter of fact, they have put together a Working Group under the Special Assistant for Tansformation to create a “Justice of Eyre Career Track” which will ensure yet another one-star billet at OJAG…..Rumor is they already enjoy the 506 Panel’s support. (By the way, where is the vaunted 506 Panel these days? Still reviewing hundreds of powerpoint slides?)

  6. Anonymous says:

    Anon 0914: concur completely. I’m sure there are reasons under Canadian law for consideration of other sentences which are not relevant for US CM proceedings. This record makes clear, however, that the judge was thorough, conscientious and diligent in the application of law to fact. This kind of diligence does a great service to the process and the people involved (or with an interest) in it.

  7. Anonymous says:

    Interesting to see both Maynulet and Horne pop up since I worked on a companion case to Horne and worked on Maynulet during the process.

    It’s fascinating to see those cases come up again in an international setting.

  8. John Harwood says:

    That was amazing! I wish military judges would give us that kind of peek into their deliberative process once in a while. Unfortunately, there’ve been a few cases recently where a judge’s “bridging the gap” session has come back to bite him/her in the backside, and my anecdotal experience is that fewer and fewer AF judges are giving good, detailed feedback.

    What struck me was the judge articulating his reasoning on each level of punishment, from the lightest to the most serious. In UCMJ litigation, the judge is presumed to follow the law, and unless some clear evidence on the record suggests otherwise the deliberations are unquestioned. This type of ruling, though, seems like it’d give us all a better ability to determine if the judge deserves such a presumption.

    Thanks, Mr. Sullivan. Great, great read.

  9. John Harwood says:

    So are conservative Cannucks going to get their knickers in a twist that a Canadian court looked to other foreign jurisdictions (i.e. US military courts-martial) for legal guidance? Just curious….

  10. Trigger Puller says:

    What a bunch of feel-good horsehockey in these posts! This judge blew it. Some warrior gives a dirtbag a more peaceful fate than he deserves and this self-righteous judge (who no doubt hasn’t deployed past the coffee shop) nails him with the dismissal. Humans are doomed….

  11. Anonymous says:

    my very last case as a defense counsel I got to talk to the panel after (with the trial counsel and judge present).

    Obviously we didn’t get their deliberative process, but we did get pointers and a look into what they liked and didn’t like about our presentations and two of the key points were:

    a. we aren’t stupid, we get it more than you think
    b. the government absolutely has to have clean hands or we will find someone not guilty even if the evidence might not lend itself to such a verdict (that last bit went unspoken but was silently clear)

    It was fascinating, and probably more so because it was a full acquittal, a conviction might have left me in a less receptive mood.

  12. Anonymous says:

    The recent spate of bridging the gap cases are exactly why judges do not say more. Signed, former MJ.

  13. Anon says:

    We tell ourselves that we are a people, a society, a country of laws and moral courage and then along comes a “Trigger Puller” to remind us of who and what we really are.

  14. Anonymous says:

    One wonders if Canadian MJs are required to do this for every CM case. If so, they must have a low caseload. Unfortunately, in our system, if a judge were to start doing this, his/her deliberative process would be an assignment of error for Code 45. “The MJ abused his discretion when he determined …………” then have NMCCA say they are going to apply a deferential standard, but then impose their own judgment, etc. (Which is what the present NMCCA does) See Maksym, Beal, et al.

  15. Charles Gittins says:

    I stopped participating in bridging the gap sessions where members are involved. While it is fascinating to listen to them speak about the case, they almost always disclose the content of deliberations and their thought processes in deliberations. Rather than be a part of it and find myself accused of misconduct after the fact, I just stay away.

  16. Anonymous says:

    Seems kind of cowardly to attack a sitting appellate judge and not even sign your name.

  17. Anon says:

    The essence of life on a blog….

  18. Anonymous says:

    Oh the coward catcall; not biting. Kind of ironic isn’t it? Calling someone a coward for posting anonymously while posting anonymously????

    BTW, it’s not an attack; it’s a fact.

  19. sg says:

    Wow, so do tell us, most of whom have deployed to one or both theaters, and some of whom are ‘trigger pullers’, which laws do you want the freedom to ignore, and how does your attitude make you any different than the Talibs and AQ?

  20. Anonymous says:

    Come on. How many times have you been a counsel in a court-martial and fallen out of your chair because the judge gave a sentence that shocked you that much? Either because of its leniency or severity? If you are honest, you walk in the courtroom knowing the general range of what could be meted out. There is nothing in this judge’s ruling that is surprising. He could have gone either way on the dismissal.

  21. Phil Cave says:

    I had a comment on my post. The comment references this piece:
    http://cjonline.com/stories/081705/kan_soldier.shtml

    This explains why I couldn’t find it online. But also makes it more “interesting” as to the use of the case. I wonder if the Canadian judge knew the clemency action?

  22. ms says:

    I’m amazed nobody has commented on the testimony from the BG. The judge implies that he doesn’t give the testimony much weight, but the dismissal is clearly consistent with the BG’s recommendation. (In fact, the testimony seems to be the only evidence directly supporting dismissal.) This is noteworthy because the testimony probably would not be allowed under RCM 1001.

  23. Anonymous says:

    Don’t forget that he, like Cary Elwes in Robin Hood: Men in Tights, can speak with an English accent!