1. Contemporaneous video’s and photos can provide vital evidence for both sides.

Nixon said he remembered Hasan because of “his stature and just how he composed himself — stoic.”

A video of this may have aided both sides. Was he stoic, or was that something else which might be relevant to a forensic health examiner. The demeanor certainly sounds damning. But could it be evidence or reflective of some other mental health disease or defect. For cases that happen on base or at a party or other event there is the potential for video and still photo evidence. Generally law enforcement doesn’t bother to collect it in most cases. As a defense counsel I’ve been able to use these contemporaneous photos to good effect. Defense counsel should always ask witnesses if there were photographs taken at an event. For example in the standard sexual assault case the event often starts at a party or a club. Digital cameras are ubiquitous and party-goers often take pictures. Those pictures may show the complaining witness or the accused at various times during the evening. If the issue is incapacitation, the complaining witness’ demeanor and actions, especially later in the evening, may be relevant. Or perhaps there’s a picture of the complaining witness kissing and cuddling with the accused on the couch, an event she denies, because it goes to a mistake or consent defense.

2. Eyewitness testimony is not as reliable as we believe. This is not a new topic. But we can see how eyewitnesses in stressful situations may not have an accurate, complete, or same memory of events. This raises a concern about post-event interviews of witnesses. The concern is how witnesses who are improperly interviewed may alter their memory to conform to facts learned from others. This is not necessarily deliberate but a psychological effect of being interviewed together with other witnesses or having their statement challenged by the investigator or being shown other statements by the investigator. There’s plenty of research on this. But here are the points from the AP article by Brown & Cracyk.

They have given similar accounts of how the rampage began, saying Hasan fired into a crowded waiting area and then walked around the building, shooting people as they hid under chairs and tables, pausing only to reload.

But have they? Later in the article the writers tell us that:

Only one witness has testified he saw two weapons. Others have said they saw one weapon, but descriptions about the gun have varied.

News reports on this have also varied. A minor difference you say. Maybe.

I’m not convinced as is Mr. McCarthy that this was a deliberate cover-up by the Army. Rather a silly mistake. That Soldier should have been ordered to turn over his cellphone as potential evidence. Once that is done the evidence can be put on an ECD by CID and retained as evidence. Sure the Soldier will be inconvenienced for a short while. But there are very good software programs and tools available to forensic computer examiners to quickly retrieve and preserve such “computer” evidence from the cellphone sim-card or SD card.

From 1986 until her retirement last year, Jaffe’s job with the California Army National Guard was to give away money — the federally subsidized student-loan repayments and cash bonuses — paid for by federal taxpayers nationwide — that the Guard is supposed to use to attract new recruits and encourage Guard members to re-enlist. Instead, according to a Guard auditor turned federal whistle-blower, as much as $100 million has gone to soldiers who didn’t qualify for the incentives, including some who got tens of thousands of dollars more than the program allows.

The Austin American-Statesman has an interesting piece about John Galligan and the MAJ Hasan case.

On Tuesday, Galligan will begin his courtroom defense of Hasan, whose Article 32 pretrial hearing — which will determine whether Hasan faces a court-martial and potentially the death penalty — is expected to feature weeks of testimony by dozens of witnesses, including all 32 wounded victims. But though his role as Hasan’s attorney has thrust him into the national discussion, Galligan has long been a polarizing figure in Bell County, where friends and foes alike describe him as a fearless fighter who has courted controversy — and the spotlight — in recent years.

Here’s a Austin American-Statesman piece on some of the players involved in the MAJ Hasan case.

Salon is reporting and has published an Article 32, UCMJ, report for United States v. Patano. Patano is running for Congress and it appears those who do not support him have obtained and released the Article 32. Patano had been charged with premeditated murder in violation of Article 118, UCMJ.

The military ultimately agreed with Pantano’s version of events, in which the two Iraqi men made a threatening movement toward him, and decided to drop the charges. Officials also opted not to subject Pantano to nonjudicial punishment for desecrating the bodies of the two men (by reloading his rifle and emptying another magazine into the men after they were already dead).

The Seattle Times reports on the Ramrod Five/Stryker Brigade cases.

A [] document[ review] raises questions about the oversight by the soldiers’ leaders. Why through most of the winter and spring months did they fail to uncover wrongdoing and remove rogue soldiers from the unit? Some officers and enlisted soldiers with direct oversight roles did have clues that something might be amiss, according to information in sworn statements they made in May to Army criminal investigators. But these leaders appear to have given the benefit of the doubt to their men, enmeshed in a difficult deployment in the heart of Taliban country

1. Can LTC Lakin change lawyers at this stage. The answer in this case is probably yes. Although technically Mr. Jensen should submit a motion to be released and the new counsel file a notice of appearance.

2. Can LTC Lakin’s get a delay in the trial. Trial is currently set to begin 3 November 2010. The current docket is dated 6 October 2010. There is some question whether or not Neal Puckett or his other counsel are available because of the Wuterich trial ongoing. Also, there would be an issue of giving them an opportunity to prepare for trial. The answer to a continuance request in this case is probably yes, unless the prosecution can show an extraordinary adverse effect on their case by a delay.

These are not new issues. I’ve taken over from other civilian lawyers three times in the last two years, and like my colleagues have needed to ask for a delay when coming into the case after it is already underway. Usually that’s not been a problem.

I think United States v. Weisbeck, 50 M.J. 461 (C.A.A.F. 1999) would be a useful starting point.

In United States v. Weisbeck the court set forth several factors: “surprise, nature of any evidence involved, timeliness of the request, substitute testimony or evidence, availability of witness or evidence requested, length of continuance, prejudice to opponent, moving party received prior continuances, good faith of moving party, use of reasonable diligence by moving party, possible impact on verdict, and prior notice.” See United States v. Miller, 47 M.J. 352, 358 (C.A.A.F. 1997).

The question would be a military judge displaying an inelastic attitude in rescheduling a trial. There certainly have been cases where a judge has denied a delay because of a change in counsel or change in civilian counsel. And most of those decisions have been affirmed on appeal. However, see United States v. Wiest, 59 M.J. 276 (C.A.A.F. 2004), in which the court found error in denying a continuance.

My sense though is that Judge Lind will give the new defense counsel a onefer. But for a potential resolution involving another hi-vis civilian attorney (John Galligan, MAJ Hasan’s counsel) see United States v. Lucero, ARMY 20020869, 2007 CCA LEXIS 616 (A. Ct. Crim. App. September 17, 2007), aff’d 67 M.J. 8 (C.A.A.F. 2008), cert. denied __ U.S. ___ , 129 S. Ct. 749 (2008).