According to this report the Army is investigating “leaks” to stop leaks of unflattering information.

The announcement states that Anonymous stole 2.6 gigabytes of e-mail belonging to Puckett Faraj, a law firm that represents Staff Sgt. Frank Wuterich, who is accused of leading the group of Marines in Haditha. The Web site of Puckett Faraj is not currently loading, and Gawker is reporting that the site was hacked.

A spokeswoman for Puckett Faraj confirmed that the Web site was down but said that she could not confirm or deny whether the site had been hacked.

Gawker reports that:

In announcing the hack, Anonymous stressed that it was attempting to expose and combat the failures of the military justice system, which let a murderer off the hook. Included in the release are “detailed records, transcripts, testimony, trial evidence, and legal defense donation records pertaining to not only Frank Wuterich but also many other marines they have represented.”

Well, yes. But a very cursory examination—we’ve only been able to peruse a tiny percentage of the data released—has turned up a wealth of information about, for instance, sexual assault victims. Puckett and Faraj, the targeted law firm, represented a Marine accused of rape in 2007. So among partner Haytham Faraj’s emails are witness statements from the victims . . . .

Judge Michael Malihi found that the witnesses and other evidence produced by the plaintiffs concerning the President’s place of birth had “little, if any, probative value.”  The judge further concluded that even though the President’s father was not a U.S. citizen, the President himself is a natural born citizen within the meaning of Article II. 

The full opinion can be viewed here.

FOR IMMEDIATE RELEASE DATE: February 2, 2012 2:21:40 PM CST Statement for Maj. Hasan Article 39A Hearing for Feb. 2FORT HOOD, Texas – Colonel Gregory Gross, the judge for the court-martial of Maj. Nidal Hasan at Fort Hood, re-set the trial date to June, 12, 2012. Previously scheduled to begin on March 5, 2012, the defense attorneys requested a delay so that they can better prepare for the trial. The judge agreed that one of the defense experts, a specialist in mitigation evidence, needs more time to complete his review of Hasan’s background. The judge also agreed that the defense team needs more time to sift through the volumes of documents related to this case. The judge considered other motions and requests from both the defense and prosecution teams in today’s hearing. The judge ruled on motions presented by the defense attorneys last October, where they requested expert assistance on the effect of pre-trial publicity and for help in selecting panel (jury) members. The judge denied the pre-trial publicity expert, but granted the panel selection expert. This expert will assist the defense attorneys in questioning the panel members before the court-martial to determine which members should be excused from sitting on the panel. The defense also filed a motion to compel the prosecution to provide them with notes from meetings and conversations between the President of the United States, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and other high-ranking officials in the aftermath of the shooting on Fort Hood on November 5, 2009. The defense attorneys have requested the notes so they can determine if any matter was discussed which may have unlawfully influenced the independent discretion of Hasan’s chain of command to prosecute him. The prosecution opposed the motion, saying that the Army officers who have taken action in this prosecution were under no influence from higher officials to do so. The judge reserved ruling on this matter until a later date.Another motion considered was the prosecution team’s request that investigation reports prepared by the U.S. Department of Defense regarding Hasan’s military career be protected from further dissemination by the defense attorneys. The defense attorneys oppose such a protective order and requested that the judge allow them time to prepare a response to the prosecution’s motion. Once the judge receives the response, he will hear arguments from both sides before ruling on the motion.The judge commented on a matter that had been discussed at the last hearing in November. The defense attorneys have requested they be allowed to talk privately with the Commanding General of Fort Hood and the Staff Judge Advocate who gives legal advice to the Commanding General, to inquire into their qualifications to proceed with this case as a capital murder trial.The prosecution asserts that such private access is unnecessary, and asked the judge for more time to prepare a response to the defense request. The judge granted them more time, and he will not rule on this matter until he considers the prosecution’s response.The judge will prepare a docketing order based on the new trial date, and he may allow both sides to conduct hearings or conferences with him on a weekly basis as the trial date grows near. He will allow both sides to submit questions to the pool of potential panel members before they are selected for this trial.Hasan is presumed innocent unless and until proven guilty in a court of law.For more information contact: Fort Hood Public Affairs Office
Media Relations
(254) 287-9993
(254) 287-0106
fax: (254) 288-2750
Fort Hood, TX 76522
query@forthoodpresscenter.com

This is an issue of the “medical” privilege, which there isn’t, compared to the real psychotherapist privilege which there is.

Here is Prof. Colin Miller the great’s summary on EvidenceProfBlog.  I read his blog on a regular basis along with federalevidence review for some excellent, often pithy, and sometimes humorous evidence law.  Check them out.

AP reports, here, that LCpl Jacoby Jacob was sentenced in Hawaii yesterday to reduction, loss of pay, and 30 days in the brig in the hazing related assault of a fellow Marine. That Marine LCpl Henry Lee killed himself after the incident. Our prior coverage of the hazing allegations can be found here.

This Note has shown that a program of targeted killing of U.S. citizens could be  lawful under certain circumstances. Specifically, I propose a system where  the targeted citizen  receives notice and an opportunity for a hearing followed by a JAG determination of his decision not to avail himself of further process and  of  his permissibility as a military target. This would balance the target’s interest in his life against the threat he poses to the lives of his fellow Americans. When we must, we will kill our fellow American before he can kill us.

In 2008, this court issued an opinion, United States v. Walker, 66 M.J. 721 (N.M.Ct.Crim.App. 2008), in which we affirmed one of the findings of guilty to violating Article 118, UCMJ, except for the language “with premeditation,” set aside the finding of guilty to the armed robbery specification, and affirmed the findings of guilty for the remaining charges and specifications.  We set aside the sentence and authorized the CA to hold a rehearing on the armed robbery and the excepted language as it pertained to the one murder specification, and on sentencing.  Id. at 757.  At the conclusion of the findings rehearing, a general court-martial composed of officer and enlisted members found the appellant guilty of armed robbery and premeditated murder.  The appellant was sentenced for all of his offenses to confinement for life, a dishonorable discharge, reduction to pay grade E-1, and a reprimand. 

I take this to be Life, not LWOP; which NMCCA has affirmed.

After carefully considering the record of trial and the parties‟ briefs, we conclude that this court erred in our 2008 opinion to the extent that we authorized a partial rehearing on the sole element of premeditation for the one Article 118, UCMJ, specification.  That portion of the proceeding violated the
appellant‟s constitutional protection against Double Jeopardy.  Accordingly, we set aside the finding of guilty from the rehearing as to Specification 1 under Charge III, and reaffirm our earlier finding of guilty of the lesser included offense of unpremeditated murder.  We find that the remaining findings, including the finding of guilty at the rehearing of armed robbery and the findings affirmed in our 2008 opinion,

This week at CAAF: The next scheduled oral argument at CAAF is on February 13, 2012.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, February 1, in the capital case of United States v. Akbar, No. 20050514. The granted issues are:

I. Sergeant Hasan K. Akbar was denied his right to the effective assistance of counsel, as guaranteed by the sixth amendment to the United States Constitution, at every critical stage of his court-martial.

A. Sergeant Akbar was denied his right to the effective assistance of counsel, as guaranteed by the sixth amendment and denied his right to representation by counsel qualified under 18 U.S.C. § 3599 (2006), in violation of his rights under the fifth, sixth, and eighth amendments to the U.S. Constitution and Article 36, UCMJ, when his trial defense counsel failed to seek the appointment of qualified counsel to represent Sergeant Akbar in this capital court-martial.

B. Sergeant Akbar was denied his right to effective assistance of counsel when his trial defense counsel failed to adequately investigate appellant’s social history, ignored voluminous information collected by mitigation experts, ceased using mitigation experts, resulting in an inadequate mental health diagnosis because the defense “team” failed to provide necessary information to the defense psychiatric witness.

C. Sergeant Akbar was denied his sixth amendment right to effective assistance of counsel where the trial defense counsel failed to challenge for cause any panel members, even though counsel had multiple causal reasons including actual bias, implied bias, an inelastic opinion against considering mitigating evidence on sentencing, and panel members’ detailed knowledge of uncharged misconduct that the judge specifically ruled inadmissible.

D. Sergeant Akbar received ineffective assistance of counsel during the merits stage of his court-martial when his trial defense counsel conceded guilt to all the elements of a capital offense, in violation of article 45(b), UCMJ, 10 U.S.C. § 845(b) (2002), and devised a trial strategy that was unreasonable and prejudicial.

E. Appellant received ineffective assistance of counsel on sentencing.

F. Sergeant Akbar’s trial defense counsel were ineffective for admitting in [its] entirety appellant’s diary without any substantive analysis and without appropriate regard for the highly aggravating and prejudicial information it contained.

II. When read with other Supreme Court precedent, military case[-]law, and cases from other federal jurisdictions, Ring v. Arizona, 536 U.S. 584 (2002), and its underlying rationale reveal [the] charges were improperly preferred, investigated, and referred, and appellant’s conviction and death sentence was unconstitutionally adjudged.

A. Appellant’s death sentence was adjudged unconstitutionally [sic] where the R.C.A. 1004(c) provisions relevant to his case were not expressly alleged in the charges preferred against him, were not expressly investigated pursuant to R.C.M. 405 and Article 32, UCMJ, and were not expressly referred to his court-martial by the convening authority.

B. Based on the Supreme Court’s reasoning in Ring v. Arizona, 536 U.S. 584 (2002), Congress unconstitionally delegated to the president the power to enact the functional equivalent of elements of capital murder, a purely legislative function.

C. Ring v. Arizona requires that the members find that aggravating factors substantially outweigh mitigating circumstances beyond a reasonable doubt.

III. Sergeant Akbar’s death sentence is invalid because the panel was misinformed about his mental condition at the time of the offenses.

Note: Each party is granted 120 minutes for argument.

This week at the AFCCA: The Air Force CCA’s docket shows no scheduled oral arguments this week.

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.

This week at the N-MCCA: The Navy-Marine Corps CCA’s docket shows no scheduled oral arguments this week.

Appellant was accused of forcible sodomy, but was convicted of consensual sodomy.  That means Lawrence and Marcum had to be discussed.  Read this case for the following:

• A discussion and reiteration of a “private” location is . . .  The discussion may be fruitful beyond an Article 125 case.
• A discussion of and that “the military judge’s ruling that the general disruption to the unit [of the investigation of the charges] implicated the third Marcum prong is untenable (emphasis added).
•   When a TC proffers something to the court, double-tap that for accuracy, and vice-versa.
• Broad talismanic incantations are as unhelpful in analyzing Marcum factors as they are in Mil. R. Evid. 404(b), situations.
• The court avoided the issue of whether Marcum “effectively incorporated new elements into the Article 125, UCMJ, charge and that these new elements should have been properly plead and submitted to the trier of fact. Essentially, the appellant argues that the Marcum factors are questions of fact to be answered by the trier of fact.”  Slip op. at  5, 6 n.1.
• The court avoided the issue:

  I.   POST-LAWRENCE, SODOMY IS NOT A CRIME UNLESS THERE ARE ADDITIONAL CRIMINAL ELEMENTS THAT FURTHER A LEGITIMATE STATE INTEREST.  OVER DEFENSE OBJECTION, THE MILITARY JUDGE INSTRUCTED THE MEMBERS THAT SODOMY WAS A LESSER INCLDUED OFFENSE OF THE CHARGED CRIME OF FORCIBLE SODOMY.  THE MEMBERS THEN RETURNED A VERDICT OF NOT GUILTY TO FORCIBLE SODOMY, BUT GUILTY TO SODOMY.  THE THEORY OF PROSECUTION FOR SODOMY WAS BASED ON ADDITIONAL FACTS ALLEGED BY THE GOVERNMENT AFTER THE TRIAL BEGAN.  THESE FACTS WERE: (1) NOT ELEMENTS DEFINED BY CONGRESS UNDER ARTICLE 125, UCMJ, (2) NOT ALLEGED ON THE CHARGE SHEET; AND (3) NOT SUBMITTED TO THE MEMBERS AND PROVED BEYOND A REASONABLE DOUBT.  IS APPELLANT’S CONVICTION FOR CONSENSUAL SODOMY UNCONSTITUTIONAL IN LIGHT OF THESE DUE PROCESS VIOLATIONS?

FORT HOOD, Texas — At the request of prosecutors and defense counsel for Maj. Nidal M. Hasan, a half-day administrative hearing will begin at 10 a.m. Feb. 2 in the Lawrence J. Williams Judicial Center.

Both parties in the case of the United States vs. Maj. Nidal M. Hasan will go on the record in open court before Military Judge Col. Gregory Gross to litigate pending motions brought by defense.  The newest motions concern discovery and a continuance.  Other motions may also be filed by either side for litigation at this hearing, and the military judge may also put other matters on the record at the hearing. 

The accused is presumed innocent unless and until proven guilty in a court of law.

Media who plan to cover the hearing must register here.

On the date for the event, satellite trucks should report to the Fort Hood Clarke Road Gate on West Highway 190 at 6 a.m. Truck registration ends at 6:45 a.m. All others should check in to the Fort Hood visitor’s center from 8-9 a.m. for final registration. All media should be prepared to show a U.S. driver’s license with photo and an accredited press badge with photo.  

An Air Force Art. 32 hearing is deciding the fate of a cadet charged with rape on USAFA gorunds.  The Colorado Springs Gazette reports, here:

Thomas, Colangelo, Claxton and several other cadets were drinking and partying in Colorado Springs when Thomas said he noticed a woman, a former cadet, was extremely drunk.

None of the cadets knew where she lived, so they brought her back to the dorms, Thomas said. After placing her on a bed, Thomas said he and other cadets left the room.

A few minutes later, Colangelo said he asked Thomas why the door was locked.

Colangelo testified to Lt. Col. Rhonda Bershok — who presided over the hearing — that he and Cadet David Burns banged on the door.

Colangelo said when Claxton opened the door, he and his friends found the woman with her pants unzipped and her shirt pulled up.

Moments later, Claxton punched Burns in the face, yelling “I’m not a rapist. I’m not a rapist,” Thomas said.

The cadets reported the incident to their superiors that night.

The SGT Brent Burke court-martial in the killing of his wife and mother-in-law is scheduled to start next month.  Coverage here from the Bowling Green Daily News.  Our prior coverage of the facts and two prior civilian trials is here and here.

After hearing evidence with neither President Barack Obama nor his lawyers in attendance, a state administrative law judge on Thursday did not issue a ruling as to whether Obama can be allowed on the state ballot in November.

Lawyers for area residents mounting “birther” challenges told Deputy Chief Judge Michael Malihi that Obama should be found in contempt of court for not appearing when under subpoena to do so. But Malihi did not indicate he would recommend that and cut off one lawyer when he criticized Obama for not attending the hearing.

“It shows not just a contempt for this court, but contempt for the judicial branch,” lawyer Van Irion told Malihi.

And now, to wrap things up, the “Orly Taitz Delusional Quote of the Day” courtesy of the Orange County Weekly, here, “ Does this look like a behavior of an innocent person? An innocent person would have come to court and showed all the valid documents with the embossed seals, which are verifiable. Instead he is acting like a 5-year-old brat, saying ‘I am afraid of Orly, ‘I want the secretary of state of GA to act like my mommy and protect me from Orly.’ Some leader of a free world . . .”   Let’s see, SEAL Team 6 or GA SOS, I think the CINC’s picked the right protectors of the free world.  There is no such thing as too much birthers.

A Georgia judge has ordered President Barack Obama to appear in court in Atlanta Thursday for a hearing on a complaint that says Obama isn’t a natural-born citizen and can’t be president.

Orly Taitz, the California attorney who brought the legal challenge to Obama’s name on the March Georgia presidential primary ballot, says this is what she has been working for over the last three years.

“This will be 100 times bigger than Watergate,” she said Saturday morning, referring to the scandal that brought down President Richard Nixon in 1974.

“There are high ranking judges and federal officials who are involved in this cover up. The ramifications of this trial will be enormous.”

. . . .

A Georgia resident made the complaint, which is intended to keep Obama’s name off the state’s ballot in the March presidential primary.

And much hilarity ensued.  UPI (here) and the Atlanta Journal-Constitution (here), by the way, say  that the President’s camp informed them that the CINC is unlikely to appear on Thursday.

A U.S. military judge sentenced a Marine squad leader charged with alleged war crimes in Iraq to a maximum of 90 days in prison and a reduction in pay and rank.

But because of a plea deal with prosecutors, Staff Sgt. Frank G. Wuterich won’t serve any time in the brig. The military judge was obligated to abide by the plea arrangement between prosecutors and the defense.

In the end, Wuterich’s sentence amounts to a reduction in rank — to private — and a pay cut.

So ends the Haditha cases . . . or at least until a creative Appellate Defense counsel gets a hold of the plea record in the next decade or so.   I would imagine the next step is some sort of mandatory high year tenure separation proceeding stripping SSgt (Pvt) Wuterich of benefits.

UPDATED:  A couple of additional reactions from the US’s rule of law protege countries, here.

1.  WHETHER APPELLANT’S FIFTH AMENDMENT RIGHT AGAINST SELFINCRIMINATION WAS VIOLATED WHEN HE WAS PROSECUTED FOR OFFENSES ABOUT WHICH HE HAD PROVIDED IMMUNIZED STATEMENTS.

2.  FOSLER.

Baker writing for a unanimous court finds:

1.  No abuse of discretion as to use of allegedly immunized statements.

We now affirm.  Appellant has not demonstrated that the military judge’s findings of fact are clearly erroneous or that he misapprehended or misapplied the law.  To the contrary, the military judge’s ruling is comprehensive and well reasoned.  The law in this area is settled and sound.  Applying the England factors, we conclude that the military judge did not abuse his discretion in determining that the Government has demonstrated that it did not make direct use of Appellant’s testimony.  While some of the England [United States v. England, 33 M.J. 37, 38-39 (C.M.A. 1991)] factors cut in favor of Appellant, the ultimate question presented in this case is not whether the Government followed best practices (it did not) or whether the decision to prosecute occurred prior to the immunized testimony (it did not), but whether the Government made direct use of the content of Appellant’s immunized statements.  The Government has met its burden in this regard.  Further, although presenting a closer question, the military judge did not abuse his discretion in determining that the Government demonstrated that it did not make indirect use of Appellant’s immunized testimony.

2.  Remanded for additional review in light of Fosler.

Three quick thoughts:

Appellant’s case was subsequently transferred to a new command, prosecution, and investigative team; however, not all of the cautions set forth in Kastigar were followed. 

And so the prosecution nearly lost a case through failure to exercise care.

A caution for defense counsel about trusting the government when the government seeks to immunize and use the client before his own trial is complete.

And the “preponderance” of evidence standard is too lenient in favor of the prosecution in this critical area of compelled self-incrimination.  Why not HBRD?