There is an interesting exchange going on between, among others, Laura Pitter (HRW), Steve Vladek, Ben Wittes and our own Cully Stimson about the fairness of the current military commissions system at Gitmo, in particular the al-Nashiri trial. Here is the latest from Vladek at Lawfare.  Here is Cully’s post on the Heritage blog comparing commissions and courts-martial.  And, in reverse order, here is Laura Pitter’s original Salon.com post that started the exchange, titled “Guantanamo’s system of injustice.”  Interesting debate.

Here is a link to the letter from the Georgia Secretary of State to the CINC’s campaign attorney.   The attorney for the Obama campaign, Michael Jablonski, has apaprently withdrawn from the proceedings after sending the CINC’s birth certificate to Mr. Kemp, but Mr. Kemp is pushing forward with Ga.’s hearing on the CINC’s ability to be on the Ga. ballot.  The AJC reports on the hearing, 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.

The birfers strike again, see Atlanta Ledger-Enquirer story here.  If you don’t already know:

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.

From CNN, here:

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.

CAAF has issued its opinion in United States v. Morrisette.

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?

Here is a link to yesterday’s Federal Register notice on the Proposed CAAF Rules changes.  The proposal includes a relaxed filing requirement for student amici briefs and extension of the certificate of review filing deadline to 60 days to match the petition for review deadline.

Wuterich guilty plea to negligent dereliction of duty here.

H/t GGH

SCOTUS decided United States v. Jones today.  This is the GPS placed on the car case.  I had a GPS device case some years ago, so it could happen in a court-martial case.

Scalia writing for the court begins.

We decide whether the attachment of a Global Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.

– It is as covered search the court concludes.  The holding is limited to placement of a device on the car.  The ruling does not address other tracking methods, such as through cell-phone technology.

Sotomayor writes in concurrence; while Alito writes for himself and Ginsburg, Breyer, and Kagan, concurring in the judgment.

Read the opinion, especially the concurrences carefully.  Part of the result here depends how you view the facts and also that the government never raised a theory of admissibility that perhaps might have caught a dissent.

Here is a link to the Orin Kerr article referenced.

The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution

Orin S. Kerr, George Washington University – Law School
Michigan Law Review, Forthcoming

Abstract:
This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections.
The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment.
Second, legislative privacy protections are significantly stronger than most commentators appreciate. The case of wiretapping is instructive. While Fourth Amendment scholars often view wiretapping as a constitutional field under Katz v. United States and Berger v. New York, wiretapping has long been a primarily statutory field. Even today, wiretapping practice is governed by statutory commands, not constitutional ones. More broadly, Congress has created a wide range of statutory privacy laws that protect privacy in developing technologies where the courts have declined to offer protection.
Third, legislatures have considerable institutional advantages that enable the legislative privacy rules regulating new technologies to be more balanced, comprehensive, and effective than judicially created rules. Rapid technological change makes it difficult for courts to clarify the law. Courts also lack the institutional capacity to readily appreciate existing technology and the impact of different legal rules. In contrast, courts are well equipped to respond to technological change in the context of criminal procedure rules.

Interesting summary dispo from CAAF:

U.S. v. Miranda . . . we note that the convening authority approved the sentence, which included a bad-conduct discharge, and then stated, “In accordance with the UCMJ, Rules for Courts-Martial, applicable regulations, and this action, the sentence is ordered executed.” Under Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered executed until, after the completion of direct appellate review, there is a final judgment as to the legality of the proceedings. Thus, to the extent that the convening authority’s action purported to execute the bad-conduct discharge, it was a nullity. To avoid any error in this regard, we again suggest that the model “Forms for Action” in Manual for Courts-Martial, United States app. 16 at A16-1 – A16-6 (2008 ed.) be revised. See United States v. Politte, 63 M.J. 24, 26 n.11 (C.A.A.F. 2006).

We’ve discussed this before here.  CAAF can’t let go of this.  Maybe the Code Committee has a little work?

This week at SCOTUS: The Supreme Court denied certiorari in Deitz v. United States, No. 11-727, on January 17. I am not aware of any other military justice developments at the Supreme Court.

This week at CAAF: CAAF will hear oral argument in two cases this week:

Tuesday, January 24, 2012:

United States v. Barberi, No. 11-0462/AR

Issue: Whether the general verdict of guilt rested on conduct that was constitutionally protected, in that at least one of the six images presented to the members was not child pornography.

Case Links:
• ACCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog Post: Argument preview

Followed by:

United States v. Bradley, No. 11-0399/NA (Bradley II)

Issues:
I. In Bradley I, this court ruled that its application of waiver to appellant’s disqualification-of-trial-counsel claim did not render his pleas improvident where there was: (1) no ineffective assistance of counsel (IAC) claim; and (2) only a possibility that he believed the disqualification claim was preserved for appeal.  On remand, appellant claimed IAC and presented evidence that he did believe his disqualification issue was preserved.  Did NMCCA err in holding that it was bound by this court’s ruling that appellant’s pleas were provident?
II. Appellant’s civilian counsel erroneously advised him that his denied motion to disqualify trial counsel from further participation in the case was preserved for appeal despite unconditional pleas.  Did NMCCA err in finding that civilian counsel’s erroneous advice was reasonable, and therefore not deficient?
III. On remand, did NMCCA violate the law of the case doctrine by finding that even if the trial judge erred by not disqualifying trial counsel – which the Bradley I court found he had – appellant was not prejudiced – which the Bradley I court found he was?

Case Links:
• Bradley I: N-MCCA opinion
• Bradley I: CAAF oral argument audio
• Bradley I: CAAF opinion
• Bradley I: Blog post: CAAF issues two more opinions
• Bradley II: N-MCCA opinion
• Bradley II: Appellant’s brief
• Bradley II: Appellee’s (government) brief
• Bradley II: Blog Post: Argument preview

This week at the ACCA: The Army CCA’s docket shows no scheduled oral arguments this week.

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.

The CAAF published a decision in United States v. St. Blanc, today.

Ryan writes for the court, with Baker concurring and dissenting in part.

We granted Appellant’s petition for review to consider whether Appellant’s decision to seek trial by military judge alone was knowing and voluntary when his counsel “misadvised” him of the maximum punishment that he faced.

We conclude that Appellant’s decision to choose trial by military judge alone complied with Rule for
Courts-Martial (R.C.M.) 903, and was knowing and voluntary.  We remand, however, for resentencing in light of United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011).

NMCCA has published an opinion in United States v. Tearman, __ M.J. ___ (N-M Ct. Crim. App. 17 January 2012.  This is a Blazier-Sweeney case.  NMCCA affirmed the conviction.

The appellant assigns one error:  that military judge abused his discretion by admitting, over the appellant’s objection, testimonial hearsay in violation of his Sixth Amendment right to confrontation.  After careful examination of the record of trial, the parties’ pleadings, and oral argument, we conclude that testimonial hearsay was erroneously admitted, but that the error was harmless beyond a reasonable doubt.

NMCCA had previously reversed on a Blazier-Sweeney basis in United States v. Alicea, No. 201100366 (N-M Ct. Crim. App., January 12, 2012) .

SCOTUSBlog notes the following case in the Monday, 20 January 2012, conference list.

Alabama v. Lane.

Issue: Whether a criminal defendant, to whom the Sixth Amendment grants no right to choose which lawyer a court will appoint to represent him in the first instance, nevertheless has a Sixth Amendment right to choose continued representation by that appointed lawyer, such that a court’s erroneous replacement of that lawyer is structural error requiring automatic reversal, even when substitute counsel provides effective representation and the defendant is not otherwise prejudiced.

The LA Times, and others are reporting PTA negotiations may be ongoing.

The court-martial of Staff Sgt. Frank Wuterich in the killing of 24 Iraqis in 2005 is set to resume Thursday afternoon at Camp Pendleton amid indications prosecutors and defense lawyers may negotiate a plea bargain.

The military judge, Lt. Col. David Jones, abruptly recessed the trial Wednesday afternoon, telling the lawyers to discuss "other options." He added he would be available for consultation.

CAAF will hear oral argument in a second case on Tuesday, January 24: United States v. Bradley, No. 11-0399/NA. This will be the second time CAAF considers Seaman Bradley’s 2004 guilty pleas before a general court-martial for assault with a means likely to cause grievous bodily harm and reckless endangerment by discharging a firearm, in violation of Articles 128 and 134, UCMJ (appellant participated in a drive-by shooting targeting another Sailor), for which he was sentenced to confinement for 48 months and a dishonorable discharge.

The appellant entered into a pretrial agreement that included an agreement to testify in the trials of his co-actors under a grant of immunity. Appellant met with prosecutors and testified, however he eventually withdrew from his PTA. The appellant was subsequently prosecuted by a trial counsel who had knowledge of his immunized statements. He moved both to dismiss and to disqualify the trial counsel; both motions were denied by the trial military judge. He then entered guilty pleas pursuant to a new pre-trial agreement.

On automatic review, the N-MCCA set-aside the findings and sentence, ruling that the trial military judge gave an ambiguous advisement with regard to the unconditional nature of the appellant’s guilty pleas, finding the pleas to be de facto conditional, and deciding that the military judge abused his discretion by not disqualifying trial counsel who had knowledge of appellant’s immunized statements, creating a Kastigar violation.

The JAG certified two issues to CAAF, which heard oral argument in 2009 (Bradley I), asking if the CCA erred in (1) finding the trial military judge abused his discretion by not disqualifying the trial counsel, and (2) setting-aside the findings and sentence without first finding material prejudice. However, CAAF did not consider the specified issues. Instead, in an opinion from which (now) Chief Judge Baker dissented, CAAF found the appellant’s guilty plea to be unconditional, waiving the issues, set-aside the CCA’s decision, and returned the case for the CCA to complete its review under Article 66.

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