Families of Victims of Ft. Hood Shootings Talk About Delays
As CAAF now reviews whether MAJ Hasan must shave his beard when standing trial for the Ft. Hood shooting spree, families are now 3 years out from the tragedy without any resolution. Reuters report here.

Bales Case Art. 32 Hearing
SSGT Robert Bales will face an Art. 32 hearing over the next 2 weeks at Joint Base Lewis McCord. Many reports on the facts behind the 16 premeditated murder charges and numerous other charges related to the shooting spree in Afghanistan, here (Chicago Tribune) and here (Seattle Times).

BGEN Sinclair to Face Hearing Today
Here is AP’s (via USAToday) version of the scant facts available about the Art. 32 hearing of former 82nd Airborne Deputy Commander BGEN Jeffrey Sinclair. Charges include forcible sodomy and possession of pornography in theater [corrected].

23 Responses to “Military Justice News for Monday, Nov. 5, 2012”

  1. Michael Lowrey says:

    No Man,
    That’s not a USAToday story on Sinclair’s Article 32 session but rather USAToday running a short Associated Press story on the topic. The AP has a longer version out too focusing on the charge sheet not being released:

    But the Army has kept details confidential, refusing to identify the officer who will preside over the hearing and military lawyers assigned to defend Sinclair. The general was serving as deputy commander in charge of logistics and support for the 82nd Airborne Division before being abruptly relieved during his most recent combat tour.
    A Freedom of Information Act request filed by The Associated Press seeking the charging documents summarizing the evidence against Sinclair was denied by the Pentagon, which claimed the papers were exempt from disclosure.

    The story includes some quotes from Eugene R. Fidell. Also note that Sinclair is charged with possession of porn while deployed but (apparently) not possession of child porn.
    The longer article can be found here: http://www.rockymounttelegram.com/news/ncwire/hearing-set-general-charged-sex-crimes-1331117

  2. Mike "No Man" Navarre says:

    ML–Sorry, yes, AP via USAToday.  I get out of that habit sometimes.  Thanks.

  3. John S says:

    No Man,
    Any chance you can take out the possession of child porn part?  Based on what has been released, this statement does not appear to be correct as Michael pointed out above. 

  4. Some Army Guy says:

    Why not release the charge sheet?????

  5. Lieber says:

    I think the charge sheet was read at the Article 32 hearing this morning.  With that said, obvious reason why the charge sheet wasn’t released..it contains the names of the victims?

    Did Fidell really tell the A.P. that an enlisted soldier would be in PTC under these charges?  Cause that’s simply not true.

  6. Gene Fidell says:

    Does Lieber really think there’d be no pretrial confinement with a forcible sodomy charge?

  7. Lieber says:

    Fidell,

    Yes, abso-fricking-lutely.  I’ve probably put 15 soldiers in PTC and have charged numerous sexual assault cases and seen plenty of other sex assault cases charged.  I’ve only seen PTC once in a sex assault case (allegations of a forced gang rape including threats to the victim’s life).  So, yes, out of a hundred or so Army sex assault cases that I’m personally familiar with..only one had pretrial confinement for the accused.  Just one.

    In the Army, PTC almost never happens except for multiple AWOLs or serious violence (i.e. deadly force).  At least for the hundreds (literally) of preferrals I’m familiar with.

  8. Lieber says:

    In fact, the vast majority of soldiers in PTC are AWOL cases…the vast majority.  Sex assault cases almost never involve PTC.

  9. Mike "No Man" Navarre says:

    JS–Thanks for poiinting that out.  Sorry to all of our readers.  Correction is possession of pornography, not tha other kind.  That is a big difference.  No Man

  10. Phil Cave says:

    Gene,

    I would agree, although less vociferously with Lieber.

    To date of many many sexual assault and (even CP) cases, I’ve only had a few who were in PTC.  The most recent one involved a person with 7 rapes of two victims, threats, firing off pistols, and assaults, and alleged threats to at least one CW.  Whereas my most recent case like this of gang-rape did not have any of the three accuseds in PTC, (until my client flipped out after announcement of findings).

    I think the usual reason for PTC is where there is evidence of tampering, obstruction, violating MPOs, and threats to witnesses.

    And, I’m not sure there are that many instances of people going AWOL, a few killing themselves, but generally very few problems with an accused showing up for trial. 

  11. Mike "No Man" Navarre says:

    Just to clarify for everyone, this is NOT a CP case. 

  12. Gene Fidell says:

    Thanks, Phil and Lieber. Are pretrial confinement data collected anywhere?

  13. Stackhouse says:

    I’m with Gene – forcible sodomy would be a PTC event.  I’m just happy there’s guys like Lieber out that who won’t put guys in PTC and that he’s seen so much.  I would say a majority of my forcible cases are in PTC or have been.  Of course that may be a result of closing down so many brigs such that PTC facilities are a pain in the butt for some commands now.
     

  14. Lieber says:

    I’m not aware of any compilation of PTC stats.  At the largest Army posts you’ll usually see 5-20 folks in PTC at any given time (most of them AWOLs that civilian defense counsel will almost never see)…some fraction of the time the magistrate will let a soldier out of PTC at the 7 day hearing.

    Overall, PTC is quite rare (it’s expensive for one thing)…probably representing no more than 1-3% of preferrals (and I’d guess that only about 75% of preferrals become referrals)…

  15. Lieber says:

    Stackhouse,

    That’s crazy…if forced sodomy = PTC then Bragg or Hood or Carson or Bliss would have hundreds of soldiers in PTC at any given time…which just isn’t the case.  remember that a forced sodomy spec is usually an allegation of non-consensual oral…

  16. Lieber says:

    Heck, there are what, two PTC facilities left in the Army?  All the rest require an agreement with a civilian facility….and that’s a pain in the neck usually. 

  17. Lieber says:

    Most detailed article on this morning’s hearing is here:

    http://www.fayobserver.com/articles/2012/11/05/1215407?sac=fo.home

  18. Phil Cave says:

    Oooops.

    Taint hearing anyone.

    Sinclair’s lawyers this morning made an issue over 16,000 emails that military investigators and prosecutors obtained. The defense says the emails, sent through Sinclair’s military account, are confidential under attorney-client privilege and were marked as such in the subject line. The lawyers asked the hearing officer at Fort Bragg to dismiss the charges, or remove the prosecutors and investigators from the case.

  19. John Harwood says:

    My $.02: I’ve never seen an accused in PTC for Art 120/125 offenses.  AWOL, desertion, drug dealing, never-ending minor misconduct, yes, but not for a straight-out 120/125 offense. 

    That being said, my half-informed, ready-FIRE-aim analysis is that the TC and CID investigators should be off the case.  When you’re prosecuting a G.O., you’re going for big game.  You gotta be loaded for bear.  No “we didn’t have enough support” excuses.  Someone outside of the prosecution effort absolutely should have gone through the emails to pick out the relevant ones and safeguard the A/C ones. 

  20. Ex TC says:

    I’ve seen a number amount of 120/125/134 sex assautls in PTC, though not the drunken kind, only sober with force and fresh reports.  My experience is that PTC 120 often goes poorly for the defense as the evidence is usually much stronger that the average sex assault case.  But with brigs closing left and right it is pretty rare today.

  21. k fischer says:

    Anyone see this story?

    Fort Hood shooting victims sue Government, accused shooter.

    http://www.reuters.com/article/2012/11/05/us-usa-crime-forthood-idUSBRE8A41KH20121105

     
    I drank the criminal justice kool-aid they served at the JAG school, so I didn’t really pay attention to the Feres block of instruction because I never wanted to be an admin law/lit div type.  Could someone please explain the significance between the label of the Ft. Hood murders as “workplace violence,” rather than a terrorist act?  If it were an act of war (terrorism), then wouldn’t the E-6′s claim for $750 million be barred by Feres?   What is the benefit, legally, of having the administration label it as a terrorist act?  I agree that the President should call it what it was, a terrorist act, but how does it affect the case?
     

  22. Christian Deichert says:

    At first I thought that the terrorist designation would fit it into the Feres exception in Schoenfield v. Quamme, that is, if civilians could have been subject to the same harm, then Feres would not bar the action.  But apparently it has to do with giving a remedy to the service members who might otherwise be Feres-barred – designating the shooting as a terrorist attack would mean that the wounds suffered were combat related and result in higher benefits.  See bottom of article here: http://amarillo.com/news/latest-news/2012-11-05/fort-hood-shooting-victims-sue-government

  23. k fischer says:

    Christian, 

    Thanks.  I think I understand it now thanks to your good catch.  If it was a terrorist act, then it would be combat related, so those people who suffered any type of disability from the shooting would receive Combat Related Special Compensation, which would be non-taxable, in addition to military retirement.  If it is just workplace violence, then it is not combat related, and the injured Servicemember would not get CRSC.