No, not that one. This one was convicted of second-degree murder Monday in federal court in Pensacola, Florida. Wilkerson was charged under the Military Extraterritorial Jurisdiction Act[.] Howard Koplowitz, Military.com 8 May 2024 (revised).
The Military Extraterritorial Jurisdiction Act ("MEJA") was enacted on November 22, 2000 and is codified at 18 U.S.C. §§ 3261-67. MEJA permits the exercise of criminal jurisdiction over crimes committed outside the United States if at the time of the offense the offender was (1) employed by the Armed Forces outside the United States; (2) accompanying the Armed Forces outside the United States; or (3) a member of the Armed Forces. No prosecution may be commenced against a member of the Armed Forces, however, unless at the time of prosecution the member is no longer subject to the Uniform Code of Military Justice ("UCMJ") or the member is charged with committing the offense with one or more other defendants not subject to the UCMJ. Per the DoJ Justice Manual.
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CAAF will sit for the final time this term next week. Yet, of all the cases it heard this term, only seven opinions have been published. CAAF does not impose a June deadline, as the Supreme Court does, but experienced courtwatchers say it is rare for a large number of opinions to be released after June. What's to explain the backlog? Fractured court? A = Author, D = Dissent, C/D = Concur/Dissent, X = in the majority for last season's opinions. Compare this with the CAAF Annual Report 2023, which includes 19 additional Ex Writs without a written opinion. When appellants and their families ask, "How long will this take?" Look at the charts beginning on page 13.
Has your license to practice law been suspended or otherwise restricted? It probably doesn't matter for court-martial purposes, but it might be good to know. United States v. CistiSeptember 2020, Captain (Capt) CP is certified under Article 27(b). 15 March 2021, Capt CP's state bar suspended him (for reasons unwritten). 29 November 2021, Capt CP administered the oath to the Appellant’s commander when charges were preferred. 19 January 2022 Capt CP represents the government at the Appellant's Article 32. In March 2022, the SJA discovered the problem, and Capt CP was removed from legal duties, but no action was taken to revoke his 27(b) certification. (The unstated assumption is that Capt CP had forgotten to inform his supervisors of this suspension.) The MJ denies a defense motion to dismiss based because an attorney “must be both qualified and designated” as a judge advocate in order to perform judge advocate functions, and when Capt CP had lost his standing to practice law in March 2021 he was no longer qualified to serve as a judge advocate. Therefore, the Defense reasoned, Capt CP was not eligible to administer the oath to Lt Col P in November 2021, nor to represent the Government at the preliminary hearing in January 2022, and the Charge and specifications should be dismissed. In response, the Government contended that because Capt CP’s designation as a judge advocate had not been withdrawn, he remained eligible both to administer the oath to Lt Col P and to represent the Government at the preliminary hearing. AFCCA finds no fault with the MJ's ruling because TJAG is the only person who can revoke the certification, which had not been done even at the time of trial. The court does not cite the United States v. x, , by NMCCA, which decides similarly when it comes to a military judge. But it appears there is a small Capt CP trailer park. As I was writing this, a new FR notice came across the transom of proposed DoN changes to the RRP. This notice of appearance must: (a) State the jurisdiction(s) in which they are licensed and eligible to practice law, (b) Certify that they are in good standing with each jurisdiction, (c) Certify that they are not subject to any order disbarring, suspending, or otherwise restricting them in the practice of law, and Perhaps a change would be for the services to require military counsel to also file a notice of appearance in each case, as does the U.S. Attorney in federal court, rather than the current practice.
United States v. ClarkDeadlines are real. Appellant requests this court set aside the findings where the military judge denied appellant's motion to compel a witness due to untimeliness. Where trial defense counsel filed the motion after the entry of pleas and after the deadline set by the pretrial order, we find the military judge did not abuse his discretion in determining defense failed to show good cause to file the motion out of time and affirm. The MJ focused on the justification for the delay in filing the motion, and did not address the government's additional objection of relevance and cumulativeness. Essentially, The MJ likely found and ACCA found the defense was dilatory. The possibility of IAC was not before the court. While the defense proffered a timeline, the timeline did not elucidate what steps defense took to investigate Mr. Us location prior to their private investigator contacting him on 9 June 2022, which was two days after the motions deadline, five months after the court's issue of the pretrial order, and ten months after preferral of the original charges, was not a surprise witness—someone defense had just discovered. Mr. El wrote his lengthy statement in March of the previous year and defense listed him as a witness on their initial request as y as 15 March 2022.3 The defense stated they were investigating Mr. s information from 1 April until 9 June but provided no more details about the actions they took to locate MrAduring those two months, or when they hired the private investigator, or what other hurdles their due diligence failed to overcome. MILITARY JUSTICE Actions Needed to Help Ensure Success of Judge Advocate Career Reforms. Report to the Committee on Armed Services, House of Representatives, U.S. GAO, May 2024. Senior officials from each service also raised concerns about the newly established Office of Special Trial Counsel (OSTC) and the likelihood that it will exacerbate issues of inexperience within certain litigation positions. Generally, judge advocates are expected to become eligible for assignment to the OSTC after 2 to 4 years of litigation experience. OSTC experience standards, coupled with the limited number of litigators who meet these requirements, will likely force the services to rely on inexperienced litigators to serve as defense counsel or other positions that lack similar requirements. Further, these officials stated that the focus on OSTC experience standards could lead to a potentially significant imbalance in the experience levels of defense and prosecution assigned to litigate the same case. United States v. WaadaLike DNA in epithelial cells, post-trial paperwork errors persist. In a published opinion, NMCCA addresses the question of the EoJ. Although Appellant submitted his case on the merits without assignment of error, we note that the Entry of Judgment [EOJ] in this case does not comply with Rule for Courts-Martial [R.C.M.] 1111(b)(1)(A) because it does not adequately summarize each specification of the charge. Although we find no prejudicial error, we take this opportunity to define what is required in an EOJ to provide guidance to the trial judiciary on an issue that all too frequently requires correction on appeal. We therefore take action in our decretal paragraph. In accordance with R.C.M. 1111(c)(2), we modify the EOJ and direct that it be included in the record. United States v. ShelbyInvestigations can take a long time, often months, sometimes years. Then there's the UCI and the PCS season. 9 Feb. 2022 -- referral of sex offenses charges to GCM. 3 feb. 2023 -- MJ dismisses some charges because of UCI. April 2023 -- back to court. Although now there's a potential issue with the defense counsel from the first go at prosecution because it appears to be PCS time for the counsel--off to the USNA as an instructor. As part of the MJ's ruling on an IMC request, the MJ dismisses a specification. April 2024 -- in a published opinion, NMCCA says the MJ made some mistakes. The convening authority correctly regarded the request as not clearly claiming an attorney-client relationship. By imposing on the convening authority a duty to look beyond Appellee’s express representation of no attorneyclient relationship, the military judge applied an incorrect legal principle and absolved Appellee from his burden to clearly claim the existence of such a relationship. As such, the military judge abused his discretion by applying an incorrect view of the law. Nonetheless, we reach the same conclusion as the military judge that the convening authority improperly denied the IMC request, but we do so for a different reason. NMCCA helpfully discusses the difference between appellate standards of review and the different standards applicable at trial. In the process, the court resurrects a charge that the MJ had dismissed for "cumulative error" reasons. The cumulative error doctrine was not born in military courts, but has been used by military appellate courts for more than seven decades as an expansion of the mandate in Article 59(a), UCMJ, that authorizes military appellate courts to set aside a finding only if an error “materially prejudices the substantial rights of an accused.” The cumulative error doctrine is a test for prejudice that looks retrospectively at a trial’s execution and results to assess the “cumulative effect of all plain errors and preserved errors.” Under the doctrine, criminal courts of appeal determine if “‘a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding.’” We then reverse only if we find that the cumulative effect of the errors denied an appellant a fair trial. Judge Gross concurs in the result, but does not believe the IMC issue was properly before the court. He ends with a time-worn admonition. Despite the fact that we vacate the military judge’s ruling, nothing in this opinion should be read as condoning the Government’s behavior in how it has sought to prosecute Appellee up to this point. The military judge’s ruling sets forth a series of concerning actions and decisions by the Government both in the current court-martial and the prior proceedings that could be construed to demonstrate a “win at all costs” mentality. Trial counsel would be wise going forward to remind themselves of the Supreme Court’s famous exhortation[.] See also n. 80.
Thanks to all for the lively discussion on Patterson below.
Phil makes a very important point in the comments which went unappreciated, it seems. The relevant precedent for this type of police conduct is Missouri v. Seibert, 542 U.S. 600, 616 (2004). There, police elicited an unwarned confession, recited the warnings, then asked the defendant to merely repeat what he had said before the warning, as if nothing had changed. The plurality wrote: "At the opposite extreme are the facts here, which by any objective measure reveal a police strategy adapted to undermine the Miranda warnings." This was a 4-justice plurality, but there is no Supreme Court case since, and therefore Seibert's plurality is thought to be close-to-binding on lower courts by those who study criminal procedure. Techniques that objectively evidence an intent to evade the protections of Miranda are themselves violations of Miranda. The conduct in this case seems to fit squarely in this category. The fictitious distinction between "suspect" and "accused" was designed to dupe the defendant into thinking that warnings were not yet needed, since he was merely a "suspect," and not yet before a judge. Of course, all lawyers should know that the Miranda guarantees attach long before a defendant is in court. What happened here violated Miranda/Seibert, and therefore violated Article 31 a fortiori. After all, the military has long bragged that Article 31 is broader than Miranda in its protections. Police are allowed to use deception, and even to lie to suspects (unlike in Europe), but they cannot lie about the nature of the rights regarding self-incrimination. "There is an absolute prohibition upon any trickery which misleads the suspect as to the existence or dimensions of any of the applicable rights or as to whether the waiver really is a waiver of those rights." § 6.9(c) Conduct of the police, 2 Crim. Proc. § 6.9(c) (4th ed.) Update: "in Europe" refers to the PEACE_method_of_interrogation. PEACE-A-Different-Approach. (The article notes that "The P.E.A.C.E Framework has evolved and since been adopted by numerous Police forces and agencies worldwide including the United Kingdom, Canada, Hong Kong, Australia, New Zealand, Singapore, Malaysia, United Arab Emirates and the Republic of Ireland.") Six Helpful Articles on the PEACE Method. Provocatively, this piece suggests that "[T]he Reid model resulted in a false confession rate of 50% compared to 0% with the PEACE model." United States v. PattersonUnited States v. Davis (ACCA). The Games NCIS Play. The lead agent began the rights advisement by saying, "Before we can talk to you, we just have to go over this form with you, okay?" He described it as "[n]ot a scary form" and "just a piece of paper." United States v. Patterson, No. 202200262, 2024 CCA LEXIS 130, at *13-14 (N-M Ct. Crim. App. Apr. 4, 2024). This issue of NCIS trickery has arisen in a number of DoN cases. Watch for it. While appellate courts, including the Supremes, have said it's OK for investigators to lie during interrogations, not every lie or misleading statement is tolerated. In this case, NMCCA found the lie substantially prejudicial. Even if we assume the rights advisement did not violate Article 31, we would still find, under the totality of the circumstances, that Appellant's due process rights were violated and that his statements to NCIS were not voluntary. Because of NCIS, NMCCA set aside a conviction in a serious case.
A Marine noticed a pen on the floor under a radiator in a male locker room. The Marine's examination of the pen found that it was not an ordinary pen because it had lights on it, what appeared to be a microphone, and an SD card inside. An NCIS agent, with the assistance of an NCIS Digital Forensic Examiner, conducted a review of the SD card's contents. The review revealed a video of Appellant manipulating the device, looking directly at the camera, and placing it under the radiator where it was found. The content review also revealed numerous videos of what appeared to be Appellant engaged in consensual sexual intercourse with unknown men. There were deleted folders with names such as "Marine1," "Big Asia," "Big Asian Dude," and "Mexican Dude." Within the deleted folders, there were two videos of a male later identified as Captain J and one video of a male later identified as Captain C completely naked in their respective bedrooms. |
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
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