Argued that was UCI bc copies of his confession was sent to his unit and he was made an example of Claimed it gave him a lack of good moral character influence IF commanders must address crime within a unit they are reminded to talk about the offense, rather than the offender, and the process, rather than the result.” was UCI, but ct stated that the judge took precautions to make sure he got a fair trial No evidence that any witness was deterred from testifying, and those that did testify, testified favorably about the accused. May Not Do Order a subordinate to handle a case in a certain way Have an inflexible policy Be accuser and Select or remove members to get a particular result at trial Place outside pressures on the judge or members US v. Baldwin (CAAF, 2001) Commanding Authority exercised UCI over the proceedings by requiring the court members, in the middle of the trial, to attend an officer professional development program where “appropriate” punishments for Officer Court-Martial Defendants were discussed. Intimidate or discourage witnesses Punish an accused before trial Have an inflexible attitude towards clemency Have subordinates/staff who do Personally dispose of a case within CA’s authority or a subordinate Send a case to subordinate without a recommendation Forward a case to a superior w/ a recommendation Pull a case up a CM on a case after lower Cdr gives an A. 15 Withdraw & withhold a case or types of cases (e.g., NCOs, Officers) Relief for UCI Trial-Level Relief Tailored by MJ Dismiss w/ or w/o prejudice CA clemency Appellate-Level Relief Dubay post-trial hearing Dismiss sentence = sentence rehearing Dismiss findings and sentence – to another convening authority or total dismissal Judge Advocate Professional Responsibility Separate Military Lawyers for the Prosecution and the Accused Government & Defense, the Lawyer-Client Relationship UCMJ, Article 27(b) Qualified and Certified Graduate of an accredited law school or is a member of the bar of a Fed Ct r the highest court of a State Certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member Regulations – Member of a bar in good standing
Past reliability Corroboration Declarations against interest Oath Reputation of source Statement from victim or eyewitness Known soldiers telling CMDR Exigent Circumstances – 315(g) PC to search and Delay would result in loss of evidence Auto Exception – 315(g)(3) PC to search and Operable vehicle Immunity (Testimonial, Transactional, DeFacto) Forum Options for Accused Guilty Military judge hears providence inquiry (stipulation of fact) May have a pretrial agreement as to sentence Panel or military judge alone for sentencing Not Guilty MJ or panel trier fact and sentencing Immunity Only GCMCA can grant (but see RCM 704(e) MJ can sometimes) Transactional – immune from trial for offenses under the code – the entire incident Testimonial – W statements will not be used at trial by CM for the prosecution of W (or any derivate evidence) Kastigar v. US (1972) Protected from non-evidentiary use of immunized statements – including the decision to prosecute Decide before testimony or show by prep that the decision was untainted by testimony US v. Olivero Drug investigation, said he used them, but then lied about it at trial Failed to show by preop that decision was untained by testimony, but all evidence indicates the contrary Trial Counsel should have packaged everything up first, and made a decision that they were going to charge him De Facto Immunity – Reasonably relied on apparent authority Pretrial Procedural Requirements Preferral and Forwarding of Charges Forwarding Charges MCM prohibits a CA who acts as an accuser from referring the case, but not from forwarding the case with a recommendation as to disposition BUT a CA who merely signs the charge sheet and is “technically” an accuser may forward the case with a recommendation as to disposition only if the CA has remained impartial The key to determining “impartiality” rests with whether the CA maintains an official interest in the case US v. Nix (CMA, 1994) Whether an officer w/ an other than official interest in a case may make the discretionary decision to order a pretrial investigation of the charges and then officially recommend that the charges be referred to a GCM
Mandatory Supervised release Prisoners not granted parole prior to Minimum Release Date can be ordered All cases except where Clemency & Parole Boards say would be inappropriate and Conditions in release plan US v. Pena (CAAF, 2007) US v. Pena (CAAF, 2007) Said that the restraints were to troublesome List of things he cant do – focuses on how he cant afford it No choice in the matter, otherwise charged with violation of lawful Jurisdiction Says it was OK They have the authority to look at sentencing Punishment Is not cruel and unusual Was on notice that this program was there Not an increase in his punishment – ends on the same date that he have gotten out anyways In to win on that – has to show actual bills Difference in civilian It is included in their sentence in the fed cts Service Clemency and Parole Boards Compositions Senior civil employees and field grade officers Paroles – must have at least yr confinement and punitive discharge 1 yr to 20 yr sentence reviewed 9 months after confined, then annually May waive consideration If sentence is 12 months – 20 years, 1/3 sentence; 30 yrs to life, 10 yrs of parole time, life 20 yrs of parole time SUBSTANTIVE MILITARY CRIMINAL LAW Military Crimes in General Overview of Punitive Articles Articles 77-134 Substantive criminal offenses Some criminalize conduct particularly important to the military Includes elements of the offense Pros must prove beyond a RD Article 134, the General Article and Federal Assimilative Crimes Act Article 134 – Terminal Elements (3 bases for Criminal Liability) Conduct prejudicial to good order and discipline Directly and palpably prejudicial Type of evidence Bring on people who are in his unit Conduct of a nature to bring discredit upon the armed forces Must have a tendency to bring the Service into disrepute or tend to lower public esteem Must be open and notorious Type of evidence bring on non-military