Here is SCOTUSBlog’s take on the Behenna cert. petition, which we’ll know the results on shortly.  H/t DHS

It appears that in exchange for removing the possibility of a death sentence, SSGT Robert Bales is going to plead guilty to at least some of the charges related to the killing of civilians outside a US base in Afghanistan. Seattle Times report here and Reuters report here. Bales will reportedly plead guilty next Wednesday to premeditated murder charges and face a September sentencing hearing that will decide whether he will be eligible for parole.

And more news here on MAJ Nidal Hasan’s request to represent himself in his court-martial via the Killeen Daily Herald, here.

10 Responses to “Military Justice News for May 30, 2013”

  1. Dyskolos says:

    The prospect of MAJ Hasan cross-examining survivors or surviving family members has just increased the degree of difficulty for the prosecution and the military judge to conduct an orderly trial. 
    Assuming a finding of guilty, I suggest a life sentence is a more appropriate punishment in his situation than death.

  2. Phil Cave says:

    I don’t think going pro se is a licence to avoid MRE 303 for example.
    I think Judge Osborn will ensure as best she can that appropriate and relevant questions are asked and that the trial is done in an orderly fashion.  My experience with her, and I think that of others is that she has a firm and judicious hand.
    I don’t have the reference, but I think there has been at least one, possibly a couple pro se cases with military stand-by counsel.  I think there may also be civilian cases where the parameters of standy-by counsel’s role are addressed.  For example,  McKaskle v. Wiggins, citing to Faretta v. California, 422 U. S. 806 (1975), http://scholar.google.com/scholar_case?case=2115696754890680224&q=stand-by+counsel&hl=en&as_sdt=3,47

  3. stewie says:

    I think him saying good morning to any of those victims is going to cause a lot of stress with the victims and their loved ones of his attacks. 
    Obviously though, he has some rights here.

  4. k fischer says:

    Phil,
     
    Been in front of her once, and I’ve had the same experience.  

  5. Scott says:

    Any thoughts on Behenna receiving a Cert grant and the only apparent controversy, whether the CAAF made a bright-line catagorical rule that Behenna lost his right to self-defense as a “matter of law”, or the CAAF considered the TOC in their decision?

  6. Don Rehkopf says:

    Zacharias Moussaoui had a couple of standby-counsel when he went pro se as I recall, one on the merits dealing with both “normal” trial-related issues and classification issues.  And because he was facing the death penalty, one of the “death qualified” counsel assisted (quite significantly in retrospect) on that.
     
    @ Scott –  barring anything strange happening, the results from SCOTUS’s conference this morning should be announced on Monday morning.
     
    DISCLAIMER:  I was a defense consultant in Moussaoui and am one of Behenna’s appellate counsel at SCOTUS.

  7. k fischer says:

    This is a off topic from the stories above, but Military Justice news nonetheless.
     
    I notice the utter lack of coverage of the Mark Thompson Naval instructor court martial for rape.  Only one of two articles that cover solely the court martial are at Military.com and the Navy Times.  Sounds like Military.com is accusing the defense of victim blaming in their article entitled Defense Attacks Key Witness in USNA Rape Case is from  Military.com.  The Navy Times article is a bit better: Annapolis rape trial:  Alleged Victim Takes the Stand.  Ironically, the only other article that “covers” the trial ties it ANOTHER sexual assault investigation allegedly involving a gang rape by 3 USNA football players.
     
    Its sad that none of the mainstream media is covering this trial.  I mean, they report about an NCO at West Point who set up a camera in the showers, but here we have a Marine Instructor who has been accused of raping a mid, and they are saying NOTHING!!!  Well, let’s see whether the facts reported in Thompson’s court martial plays into their narrative.  
    The Navy Times reports: 
     
    The defense also introduced a series of texts between the alleged victim and Stadler. One from Stadler says, “What is the story so I don’t mix it up?” The alleged victim told Stadler to “say anything and everything…haha.”
    I would file this little nugget under “Things that Make Phil Cave type Hmmmmmm…..”
     
    Then, Military.com reports:
    Ensign Jonathan Erwert was part of a parade of defense witnesses who attacked the character and credibility of Ensign Sarah Stadler, a former midshipman who played a central role in having Marine Maj. Mark A. Thompson brought before a general court martial on charges of sexual assault.
     
    Am I crazy, or is the reporter’s use of “parade of defense witnesses” have a negative connotation?  Nonetheless, these witnesses lambasted Stadler for being untrustworthy.
     
    Meanwhile the Military.com article indicates that there are some alibi witnesses here:  First, while Stadler and the “victim” were supposedly at Thompson’s house and left shortly before midnight after playing strip poker and having sex, Erwert was making out with Stadler at the Federal Hall bar in Annapolis and tried to rent a hotel room at around midnight.  Also, Marine “mustang” Jason Beasley stated that he was at Thompson’s house to borrow a Sam Brown belt and Thompson was there with his live-in girlfriend.  The three chatted, had a beer, and he left.  A bunch of other witnesses testified that Stadler was not trustworthy and did not face cross examination from the Government.
    I thought it was somehow odd that even at the Article 32 hearing, Thompson’s civilian counsel William Ferris contended that “none of the allegations happened.”  But, it appears that Thompson is denying that he had an affair with Stadler, too.
     
    And, it is quite ironic that the DEFENSE attempted to call the NCIS agent as a witness.  Somehow the agent was unable to appear because of difficulties of travel out of Guantanamo Bay, Cuba.  Anyone who has gone TDY to GTMO understands the diffficulties in leaving the island, but I have to imagine that if that NCIS agent was needed as a Government witness because he had some good evidence on Thompson, then he would have been at the trial ready to testify.
     
    I hope that defense counsel was permitted to ask their witnesses if they believed that Stadler was “pure evil, the spawn of Satan” to counter the potential argument in closing that the panel members would have to believe that the accusers were “pure evil, a spawn of Satan” to make these allegations up.

  8. CAAFriend says:

    @kf-
    Here! Here! I imagine it would be a befitting tribute to Mr. Spinner if the ‘pure evil’ defense was effectively used beforehand–by the defense–and not through opportunistic maneuvering by a TC team bent on achieving a conviction at all costs.  I imagine the MJ will lean (or did lean, as I can’t tell from the coverage) towards any DC request as to character for (un)truthfulness as a still leftover issue from placing useful court strategies online…  
    In the related column, Stars and Stripes published an article early this morning (east coast time) announcing the change of command at Aviano.  One would have thought the article was about BGen Norman, and it was, in the first paragraph.  However, paragraph 2 immediately jumped into sex assault, LtGen Franklin (who presided over the ceremony, correctly so, as the numbered air force commander), and so on.  It was a blatant attempt to keep the issue alive, and how one could conclude a change of command was related to sex assault is beyond me. But, they did–or tried. The article has since been pulled. Now, with full disclosure, I’ve always placed Stars and Stripes squarely in the regime of ‘hack’, but even this seemed to be a pretty poor attempt at agenda placement. 
    Last, I wonder why we also have not heard from Nancy Parrish (from Protector our Defenders/amazingly quiet btw) and SWAN (even quieter still).  Why are they not rallying outside Thompson’s trial along with Gillebrand and McCaskill? Where is the posse now and the Parrish’s of the world proclaiming that a woman ‘would never make these allegations up’? 

  9. k fischer says:

    I wish I would have attended this court martial.  It sounds like the “vics” are treating this like a complete joke:
     
    “Instead of going for a run, we were doing a different physical activity,” she told the court — one of several instances during her testimony in which she made light of her relationship with the instructor.
     
    This fact coupled with the text message from Stadler that they needed to get their stories straight and the alleged vics reply to say “anything and everything….haha” makes me really feel sympathetic for Thompson.  I hope it takes the panel about 5 minutes to acquit him..
     
     
     

  10. k fischer says:

    Anybody have the scoop on the Thompson trial’s split verdict?  Did he testify?  Did his live-in girlfriend testify?  Did they do well?  This article leaves a lot to be desired…..