LAW FROM THE CENTER

The US Army Court of Criminal Appeals overturned both the conviction and death sentence of Army Sergeant William J. Kreutzer, convicted of killing an Army Major and wounding 17 others when he played sniper and shot into a formation of defenseless soldiers conducting morning physical training. See the NYTimes.com article here. Thanks to the Intel Dumper for the heads up. More to follow...

Looks like Army Muslim Chaplain James Yee might be completely cleared of all criminal charges, according to the NY Times (registration required).

The military is considering settling the case of Capt. James J. Yee by dropping all charges against him and allowing him to leave the Army with an honorable discharge, officials said. Captain Yee, who was the Muslim chaplain at the naval base at Guantánamo Bay, Cuba, had been suspected of espionage but was charged with transporting classified information without a required secure container. He was also charged with adultery and keeping pornography on his computer.

ANALYSIS: I predicted this outcome here from the remarks of his lawyer, Mr. Eugene Fidell. As my colleague the Intel Dumper commented, the Army really shit the bed on this one. What they should have done was kept their big mouth shut and lower expectations, instead of doing the perp walk on him. That was just setting their case up for failure. Kudos goes to the accused for picking Mr. Fidell, probably the best lawyer you could find in this kind of situation. It will be interesting to see how long the settlement will take, and what Chaplain Yee will do with his life once he is out.

The trial date has been set for Army Sgt. Hasan Akbar, who I told you about here. News from Fayetteville (NC) Online. Sgt. Akbar will face trial July 12. The case is projected to last 8 days. Motions will be heard April 15-16 and April 28-30. While the arraignment took place at Fort Knox, KY, the trial will take place at Fort Bragg, NC. The defense attorney asked for a fall trial in order to have more time to review evidence, but the military judge denied the request. That does not mean that a later request to delay will not be granted.

For those who get up too early in the morning, or too late, to watch the Today Show on NBC, they had an exclusive interview with Chief Justice William Rehnquist, which held some telling clues about some controversies himself and his court are facing.

1. The Scalia recusal crisis. I have commented on it here and here. The CJ speaketh:

Should Chief Justice Antonin Scalia recuse himself from a case involving Vice President Dick Cheney because the two went on a recent hunting trip?

The chief justice wouldn't comment directly but told a personal anecdote to suggest that socializing with a justice might be ok.

Gangel: “You like to play cards?”

Rehnquist: “Yes.”

Gangel: “You have a well-known poker game in town. If someone in your game had a case before the courts would you recuse yourself in that case or not necessarily?”

Rehnquist: “No.”

Gangel: “You wouldn't?”

Rehnquist: “No. If it were a regular game and that sort of thing and the only occasion on which I saw the person was at the monthly game, no -- no, I don't think I’d recuse myself.”

2. Rumors of retirement. Will the CJ retire soon, or will he cling to power like the infamous Taney? Let's listen:

These days, Rehnquist knows there's much speculation about whether he plans to retire and admits he thinks about it.

Rehnquist: “Well, at age 79 you can't help but thinking about retirement.”

Gangel: “Seriously? Are you making news here?”

Rehnquist: “No, I’m not. I assure you I’m not making it. I’m just saying, when you get to be 79-years-old you know your life expectancy isn't what it once was and you've got to think about the possibility of retirement.”

Gangel: “For the foreseeable future though, you're staying on the court?”

Rehnquist: “Well, I’ll just stick with what I just said."

Hmmmm...

3. His book. I've previously told you here and here that the CJ's two previous historical books, The Supreme Court and All the Laws But One are nothing to write home about. Seems that his new book, Centennial Crisis, is about the disputed Presidential election of 1876, one that the Supreme Court also decided on:

Gangel: “You know Chief Justice, everyone is going to look in this book for clues for a connection with the election in 2000. Are there any clues in the book?”

Rehnquist: “I really don't think there are.”

That said there are striking similarities. An amateur historian, Rehnquist retells the story of another bitterly disputed presidential election -- the 1876 race between democrat Samuel Tilden and republican Rutherford B. Hayes. So close it, too, was decided by Supreme Court justices. “I think everybody seemed to know that it was going to be close going in. Of course the results in those days came in by telegraph and there weren't any exit polls. So people were a lot slower to find out what was going on. The New York Times, which in those days was very pro-republican, said, you know, ‘election undecided,’” says Rehnquist.

There was controversy over voter fraud, months of partisan wrangling, and in the end, the republican candidate won.

Rehnquist: “About four in the morning on March 2, Hayes was declared president and he served -- he served a term.”

Gangel: “He was called ‘Ruther…?’”

Rehnquist: “He was called ‘Ruther- Fraud’ by the democrats.” (Laughs)

It does sound remarkably familiar, but if you want to know what the chief justice thinks about the Bush-Gore case and the criticism of his court, you will have to read between the lines.

Gangel: “If you would read from the epilogue.”

Rehnquist: “Sure, ‘those who decide the contest with inevitably be subject to criticism by the party whose candidate is the loser.’”

Gangel: “Were you writing about 1876 there or 2000?” (Laughs)

Rehnquist: “Well, I think you could say that it applies to either one.”

And that's as close as you'll get.

A few hours ago, Reuters reports that Army Chaplain James Yee, who was originally charged with espionage and is now charged with mishandling classified information in violation of Army Regulations as well as adultery, has had his hearing postponed for the fifth time in three months:

A spokesman for the U.S. military's Southern Command declined to give a reason for the latest delay in the hearing to determine if Capt. James Yee should face a court-martial. Yee's lawyer said the military's case was in disarray.

Previous delays since the start of the hearing in December at the Fort Benning Army base 100 miles southwest of Atlanta were granted to allow the Army and defense more time to review evidence, which includes classified documents.

"This is the end of the line. They have got to pull the plug on this," said Eugene Fidell, a civilian attorney who began representing Yee several weeks after his Sept. 10, 2003, arrest in Jacksonville, Florida.

ANALYSIS: Mr. Fidell's remarks are very telling. Military prosecutors, according to regulations, have 120 days to bring a case to trial from the day charges are preferred. The hearing this story most likely refers to is the Article 32 hearing, which amounts to a civilian preliminary hearing. Although the news story says that the hearing has been postponed for only three months, this does not count the amount of time that Captain Yee was held in confinement before preferral of charges. Since he was held in pretrial confinement, the 120-day clock starts from the day he is held, NOT the day charges are preferred.

Defense-requested delays are not counted in that clock. However, Mr. Fidell's remarks that "[t]his is the end of the line," and that "[t]hey have got to pull the plug on this," seem to allude to the fact that the 120-day clock may be winding down.

A word about Mr. Eugene Fidell. He is to a court-martial the equivalent of Johnnie Cochrane to the civilian criminal court. He is the President of the National Institute of Military Justice, the American Law Institute of the military world. He is also a high-profile Washington Attorney. I wrote about him here. Whenever he walks into a military courtroom, everyone wearing JAG insignia knows who he is. Many military trial and appellate judges are personal friends of his. When he opens his mouth, he has instant credibility. The fact that he is representing Captain Yee, and that he is alluding to the fact that this case is at the "end of the line," is very telling indeed. This case may evaporate in a matter of days.

Nearly a year after Sgt. Hassan Akbar allegedly threw several hand grenades into a 101st Airborne Division headquarters tent and killed two soldiers, word came Thursday from WRAL-TV (Fayetteville, NC), that the Muslim soldier will stand trial for capital charges. The case was transferred from Fort Campbell, KY, the 101st Division home base, to Fort Bragg, NC, home of the 18th Airborne Corps, the 101st's higher headquarters. It was transferred because most of the 101st is still engaged in or recovering from operations in Iraq. In order to adjudge a death sentence, all 12 panel members must unanimously agree. The defense theory is that there were no eyewitnesses to the crime, and that Sgt. Akbar is being unfairly singled out because he is Muslim. Once charges were referred Thursday from Lieutenant General John R. Vines, the Corps commander and the convening authority, the government has 120 days to begin the trial, not counting any defense-requested delays.

CORRECTION: As the first commenter to this post correctly pointed out, the 120-day speedy trial clock begins when charges are first brought OR when pre-trial confinement begins, whichever is earlier. It is already running when the convening authority refers charges for trial.