Barbara (Obremski) Allen, widow of Chester native First Lt. Louis Allen, will host a book-signing of her new release “Front Toward Enemy” On Saturday, Oct. 23 from 3-6 p.m., at John S. Burke Catholic High School in Goshen. When Lt. Allen was murdered in Iraq in 2005 he left behind Barbara and their four sons ages 20 months to 6 years. While the Sergeant accused of his murder signed a confession, it was rejected and he eventually walked out of the Army and his court martial a free man. This is the impossible story.

Apparently Congressman Benjamin Gilman refers to her story as one of “butchered justice.”

There is a website here at www.unconventional enemy.com.

The case is United States v. Martinez, which was tried at Fort Bragg.

WRAL.com reported on 22 October 2008:

Military prosecutors argued Wednesday that the first soldier accusing of killing a direct superior in Iraq – known as “fragging” during the Vietnam war – told other soldiers he wanted to kill and burn his National Guard officer. Defense attorney Maj. John Gregory refuted the prosecution’s claims in his 90-minute opening statement, saying there was no concrete evidence linking Martinez to the killings. He also said Martinez was charged because of his feud with Esposito, a by-the-book West Point graduate who took over a relaxed National Guard unit.

Here is a New York Times article from 20 February 2009:

However, documents obtained by The New York Times show that more than two years before the trial, while prosecutors were still gathering evidence against him, Sergeant Martinez signed an offer to plead guilty to the murder charges. He offered to be sentenced to life in prison with the possibility of parole, and thereby avoid the death penalty. “This offer to plea originated with me,” Sergeant Martinez said in the plea offer. “No person has made any attempt to force or coerce me into making this offer.” The offer was swiftly rejected by the general responsible for prosecuting the case. There has been a rich debate in civilian legal circles about whether charging a person with a crime punishable by death compels some defendants to confess to crimes they might not have committed.

[A] prosecutor of the Martinez case who was not involved in the decision to reject the plea offer, said there was concern within the Army that Sergeant Martinez might have been eligible for parole after 10 years, despite acknowledging murdering two officers.

I seem to remember some discussion within the military justice community about the rejection of the PTAO because of a lack of understanding of the post-trial process, especially clemency and parole.

Here is a CAAFLog post on the case. I point you to the two comments from Dew_Process.

Obviously a big story warranting inclusion on CAAFLog’s 10 biggest that year. More importantly a heart rending experience for the families of the two dead Soldiers.

Up until, oh I don’t remember the date now, but quite a number of years ago, a military prisoner who reached his minimum release date (MRD) was released without any restrictions on liberty post release. That lead to a bit of gamesmanship before the clemency and parole boards. If a prisoner was up for parole consideration and he had less than a year to go for his MRD the prisoner would usually waive parole consideration. They were willing to serve the months rather than be paroled. That was because a paroled prisoner would waive all of their good time. But more importantly be subject to many onerous conditions of parole.

(Note to trial practitioners. Before advising your client about post-trial matters I would recommend you consult and you review with the client DODI 1325.7. This regulation has a number of important rules you can educate your client about (including, yes, sex offenders). Although it does not contain Rule No. 1 for obtaining parole: that you “have taken responsibility for your confining offenses.” Words to that effect must show up somewhere in confinement evaluations and recommendations. That works pretty well in a GP case. If you are a defense counsel and have NG but found guilty case give me a call, all is not lost. [Having sat as a voting member of the Navy C&PB, albeit some years ago, I’d venture that no other rule is as important to parole than Rule No. 1. You may have good scores on the points based classification system and good reports and no discipline reports, but . . . you clearly haven’t learned any lessons.] Anyway. Upon entry to confinement the facility calculates the full term date (FTD), that’s day for day service of sentence, minus credit for pretrial confinement or an Article 13, UCMJ, violation, or effect of a PTA. Then they calculate automatic good time credit based on the length of approved sentence, which becomes the minimum release date (MRD). Absent loss of good-time or clemency or parole that’s when the prisoner can normally expect to be released.)

Once the rule changed it no longer matters much about release on MSR or parole because of mandatory supervised release conditions. These conditions can be as onerous as parole conditions administered by the federal probation and parole personnel. In particular mandated sex offender or other counseling, no computer access, etc.

As Dwight points out that rule was challenged in United States v. Pena, 61 M.J. 776 (A.F. Ct. Crim. App. 2005), aff’d, 64 M.J. 259 (C.A.A.F. 2007). The petitioner in Pena was unsuccessful.

The district court judge in Moultrie denied the petition. So now several courts have independently ruled against a petitioner wanted a ruling against application of MSR, as well as CAAF. It would seem that the issue doesn’t really become ripe until such time as the prisoner is about to be or is released on MSR?

The results are consistent with Supreme Court jurisprudence as those ordered into supervision by state or federal civilian courts. No federal circuit court has ruled on this issue yet. But Dwight points to the one case from the federal jurisdiction in which the USDB sits — Huschak v. Gray, 642 F. Supp. 2d 1268 (D. Kan 2009). It was assumed that all MSR’s would have to be litigated in Kansas. But if Moultrie is followed, a MSR’ee can seek relief in the federal district court-house building in which (usually) his probation officer has her office. A similar type of petition has been denied in Clayton v. United States Army, 20091119, 0000827 (W.D. Ky. November 19, 2009).

Here is a link to the U.S. Sentencing Commission report on Federal Offenders Sentenced to Supervised Release, July 2010.

Vicki Behenna has 10 minutes to plead her son’s case. Where does she begin? In the last few months, she has developed hours of arguments about why U.S. Army 1st Lt. Michael Behenna was wrongly convicted of killing a suspected terrorist in Iraq in 2008, why his 20-year sentence for unpremeditated murder was too severe compared to other sentences for the same offense and why the military rules for detaining suspected terrorists make no sense in a combat zone. She will have to condense all that into a matter of minutes when she appears Thursday before the Army Clemency and Parole Board in Arlington, Va.

Reports NewsOK.

Having done hearings at the Army Clemency & Parole Board I am not sure that the Board will hold her exactly to the ten minutes. True, such presentations need to be clear, concise, and tailored. But in my experience the board members, including Mr. Vick from time to time will have pertinent questions. And there will be some leeway to make sure a point is made and understood.

Here is a link to Band of Mothers referenced in the piece. And here is the link to the Behenna website.