• Statutes of limitations are crucial in preserving evidence and ensuring a fair trial. As time passes, evidence can deteriorate, witnesses can forget details or become unavailable, and memories can become less reliable. This can significantly hinder the fairness of a trial, particularly for the defendant. The statutes of limitations help maintain this balance.
• Statutes of limitations shield the defendant’s rights, providing a sense of security. It’s generally unjust to leave someone under the perpetual threat of prosecution. These statutes protect individuals from facing charges for actions long in the past when mounting a defense might be extremely challenging.
• Resource Management: Statutes of limitations play a crucial role in efficiently managing law enforcement and court resources. These institutions have limited resources, and prioritizing recent crimes helps them focus on cases with fresher evidence and more readily available witnesses.
• Public Interest: Statutes of limitations are not just about justice; they also consider the public interest. Allowing people to move on with their lives after a certain period, especially for less serious offenses, benefits society. This broader impact is an important aspect of these legal concepts.
• Serious crimes often have no statute of limitations. This includes offenses like murder, war crimes, and crimes against humanity.
• Statutes of limitations can be ‘tolled’ (paused) under certain circumstances. For instance, if the defendant flees the jurisdiction or if the crime is concealed, the statute of limitations may be extended. This means that the clock on the statute of limitations stops running during these periods, ensuring that the defendant cannot escape justice by simply waiting out the time limit.

The statute of limitations (SoL) in Article 43, UCMJ, limits the ability to prosecute specific charges at court-martial. While the general rule is five years, many offenses, such as sex offenses, have longer SoLs. For example:

• There is no SoL for AWOL in times of war, murder, rape, sexual assault, rape or sexual assault of a child, maiming of a child, kidnapping of a child, or any other offense punishable by death, or
• having committed a child abuse offense against a child and sworn charges and specifications are received during the life of the child or within ten years after the date on which the offense was committed, whichever provides a longer period.

It is important for military defense counsel to always check the SoL for each specification and make a motion to dismiss if appropriate. However, keep in mind several points (1) the SoL can be waived, usually as part of a pretrial agreement (PTA), or (2) can be waived or forfeited by defense counsel not making a timely motion to dismiss.

A common term in a PTA is that the accused will “waive all waivable” motions. The accused needs to understand how that bargaining chip works. And military judges have to be careful when that comes up. It is unclear what happened during the PTA discussions in Espejo. Espejo was charged with multiple sexual assaults of a child over time. He pleaded guilty with a PTA and was sentenced to 50 years confinement. The main issues were:

Statute of Limitations: There is no discussion during the trial or the PTA proceeding about the applicability of the SoL to one of the charges. It appears neither the defense and prosecution lawyers nor the judge realized there was an SoL problem with one of the specifications. Ergo, the military judge’s error in accepting a guilty plea to a charge outside the statute of limitations is a serious issue. Had the military judge asked the right questions, there’s possibly a valid waiver would have been identified and thus no issue on appeal. However, there was an error, and upon sentence reassessment, the confinement was reduced to 43 years.

Plea Agreement: The plea agreement contained language that violated the Appellant’s post-trial and appellate rights. Specifically, the language in question restricted the Appellant’s ability to appeal the case. This language was struck from the agreement. The court opinion reads as if this was the prosecution being creative in bargaining, which didn’t succeed.

Here is a quick note from KWTX.com:

FORT HOOD (April 30, 2010)–Fort Hood authorities said Friday they have not reached a decision to seek the death penalty in the upcoming Article 32 for Army Maj. Nidal M. Hasan. “There has been no decision to pursue the death penalty in the case against Maj. Nidal Hasan,” Post officials said in a press release Friday.

Initially there are some terminology issues to resolve. There are two notice provisions when the prosecution seeks a death penalty.

1. Notice of a capital referral is first formally made on the charge sheet at the time of referral. R.C.M. 1004(b)(1)(A).

2. Notice of the aggravating factors which the prosecution asserts justify the death penalty are given: (1) in writing, (2) by the Trial Counsel (remember we are at the Article 32, UCMJ, stage, so there is no trial counsel on the case, just government representatives assigned IAW R.C.M. 405(d)(3)(A)), (3) before arraignment. However, the government drafted R.C.M’s also have a get out provision that:

Failure to provide timely notice under this subsection of any aggravating factors under subsection (c) of this rule shall not bar later notice and proof of such additional aggravating factors unless the accused demonstrates specific prejudice from such failure and that a continuance or a recess is not an adequate remedy.

The aggravating factors are found at R.C.M. 1001(b)(4) as well as 1004(c). Not all of those factors apply, but the following could: damage to national security (2)(3), endangering the life of one or more persons other than the victim(s) (4), and / or with intent to avoid hazardous duty (5). So far it appears the prosecution is focused on 1004(c) (4). R.C.M. 1001 addresses general aggravating evidence found in all cases and it is 1004 that addresses the additional aggravating facts to justify death.

So, I agree that legally the prosecution has not been referred capital. Thus the notice isn’t really a notice as contemplated by the R.C.M. However, it is my understanding that Army practice is now to produce for an Article 32, UCMJ, investigation information supporting a capital referral and asking the IO to make a recommendation. Such a practice makes sense, especially in borderline cases. Article 32, UCMJ, and RCM 405 provide for the IO making a recommendation as to disposition of the charges. Clearly a recommendation on a capital referral is within the IO’s ambit. If so, then it seems to me that the defense ought to have every opportunity to address those matters within the context of RCM 405. It is my understanding that putting the defense on early notice was a reason for the practice at the Article 32, UCMJ, hearing.

Here is the actual command press release courtesy of KWTX.com.

It’s true that the convening authority has not decided to make the formal referral. But I think it somewhat disingenuous to proceed as if this is not a capital case. By proceeding legalistically the prosecution can justify denying the defense the opportunity to prepare for and present mitigating information under RCM 405(f)(11)(12) at the Article 32, UCMJ, hearing. That’s how I interpret Mr. Galligan’s complaints. If the prosecution is proceeding deliberately to limit the defense opportunity to present mitigation at the Article 32, UCMJ, hearing, then perhaps Mr. Galligan’s perceptions of unfairness and gamesmanship could have a reasonable basis in his view. Mr. Galligan has several items on his blog:

Senators Lieberman and Collins still have not received all of the information that was outlined in the subpoenas earlier served upon the Department of Defense and Department of Justice. Nonetheless, the Senators received information that has yet to be provided to the Hasan Defense Team. Prosecutors have voiced objection to anything more than a one-week continuance in the Article 32 hearing which is now scheduled to commence on 1 June. They appear uncaring about that fact that the new member of the Defense Team is not expected to arrive at Fort Hood for several more months or the fact that basic discovery associated with the case (e.g. FBI reports and classified/restricted investigations) still have not been provided to the Defense counsel. Most disturbing, the Army continues to stonewall Defense efforts to get its requested mitigation specialist on board. In its most recent statement about this issue, the prosecutors have argued, “The Government notes that as the present case has not been referred to any level of court-martial, the defense is not presently entitled to a government funded mitigation specialist as a matter of right.” It is time for them to stop playing games. Dilatory actions like this is what gives military justice a bad rep – fundamental fairness and a balanced presentation of evidence apparently is of no concern to this crop of prosecutors.

Here’s a post at Huffington Post about ‘Wolf Blitzer’s Shame Campaign.’ Another media expose of those shameless defense counsel who represent an accused. The piece ends:

What I don’t understand is this: Why is Wolf Blitzer trying to steal Nancy Grace’s thunder? I thought howling about what monsters defense attorneys are was her schtick.

I saw a military jury convict Hennis on April 8 and sentence him to die Thursday[.] Hennis’ lawyer, Frank Spinner, said at the bottom of the courthouse steps that the jury never got to know his client, who did not testify. The jurors instead were treated to gruesome photos of the murder scene, he said.

That was Hennis’s choice. He was not required to testify. The members would have been instructed that they could not consider the declination to testify as evidence of guilt or hold it against him.

[T]he facts don’t help Hennis. First, he adopted a dog from a woman who was found murdered two days later. His bad luck. Second, a man who had never seen him before says he saw a man fitting Hennis’ description get into a white Chevrolet Chevette near the crime scene that night. The police sketch and Hennis’ mug shot are shockingly similar. Then, Hennis has no solid alibi for his whereabouts both times someone used Katie Eastburn’s stolen ATM card. A witness at the ATM described a tall man climbing out of a small, white car, like the kind of Chevette owned by the 6-foot-4 Hennis. A day after the murders, Hennis happened to take a single garment to be laundered, a Members Only jacket, like the kind a witness said the suspect near the scene had worn. Then, neighbors reported, he just happened to be burning items for hours in a barrel later that day. Beyond all that, there’s the DNA. There was maybe one place in the world where Hennis’ DNA could have been found that would have fatally undermined his version of events, and that’s where it was found – inside Katie Eastburn.

CAAFLog links to an interesting report of Mr. Eastburn’s reaction.

The United States military has decided to refer charges against an Army captain from Evergreen who is accused of ordering Iraqi officers to kill two Iraqi civilians.

Army Times reports.