Sunday, September 5, 2010

2nd Petition for a New Trial

The Judge Advocate General, Vice Admiral James W. Houck, received Edwin's 2nd petition for a new trial.  The first petition was denied by the Navy-Marine Court of Criminal Appeals (NMCCA) stating that everything was a repeat of what was litigated at trial.  This 2nd one is not a repeat of anything that was brought up at trial.

Once I decided to re-file the petition under Art 73, UCMJ, I also did some research as to what should be included and made some interesting discoveries. 

Edwin's Sixth Amendment speedy Trial rights were violated.  At NMCCA, Judge Maksym stated:

"My marked reservations are, in the main, prompted by the significant delay-opaquely portrayed in the record of trial of the nearly three year interregnum between the first statement of the minor alleged victim and the trial on merits.  RECORD AT 319-320.  These massive delays shroud the entire proceedings with a specter of reasonable doubt".

By Judge Maksym acknowledging these delays and failing to do anything to remedy the issue, NMCCA has violated the very laws they are supposed to uphold.

In Barker v. Wingo, the U. S. Supreme Court ruled that a "delay of a year or more from the date on which the speedy trial right "attaches" (date of arrest or indictment, whichever first occurs) was termed "presumptively prejudicial".  The prosecution is also not allowed to delay the trial for its own advantage, which they did in Edwin's case.

In Strunk v. United States, 412 U.S. 434 (1973), the Supreme Court ruled that if the reviewing court (in Edwin's case it was NMCCA), finds that a defendant's right to a speedy trial was violated, then the indictment must be dismissed and/or the conviction overturned.

The second issue I brought to the attention of the Judge Advocate General, Vice Admiral Houck is the fact that the military judge, Major B. E. Kasprzyk stated in his closing at the trial that he did not consider Special Agent Eric Muelenberg's statement with regards to Edwin terminating the interrogation and asking for a lawyer.  RECORD AT 378.  The exact quote is as follows:

"Prior to announcing the findings of this court, I want to make clear that I did not consider the testimony of Special Agent Muelenberg with regard to Sergeant Ehlers electing to terminate the interview and ask for a lawyer during the interrogation of 25 May 2005"

Special Agent Eric Muelenberg admitted at trial that when he was questioning Edwin, and Edwin requested an attorney, Special Agent Muelenberg DID NOT terminate the interrogation immediately.  He stated that he continued to question Edwin until the duty driver arrived.  The exact quote was removed from the Record of Trial prior to the judge authenticating the Record of Trial, which according to the UCMJ- a military judge,sitting alone, is not allowed to do.

By not considering the statement made by Special Agent Muelenberg, the military judge has violated Edwin's Art 31, UCMJ and Miranda rights.  The military judge also abused his authority as the finder of fact in this case.  In the military, the accused enjoys not only the protections of Art 31, but also the Supreme Court's mandate from Miranda.  United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967)

As soon as this was violated, the United States Marine Corps was at fault.

When the process shifts from investigatory to the accusatory-when its focus is on the accused and its purpose is to elicit a confession, our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with a lawyer.  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2nd 694 (1966).

In United States v. Riley, an agent from NCIS made reference to the accused's invocation of his right to remain silent.  The Court of Criminal Appeals recognized that when the prosecution brings such matter to the attention of the finder-of-fact, the usual test for prejudice is the constitutional standard of harmless beyond a reasonable doubt.  United States v. Moore, 1 MJ 390 (CMA 1976); see also United States v. Ward, 1 MJ 176 (CMA 1975) (adopting test of Chapman v. California, 386 U.S. 18 (1967)).  After reviewing the evidence under this standard the court concluded that when considering all the evidence presented at trial, there is a reasonable possibility the erroneous introduction into evidence of the fact the appellant repeatedly exercised his right to remain silent before trial might have contributed to his conviction.  The error if properly reserved, would not have been harmless beyond a reasonable doubt.

The court also noted that failure to make a timely objection would forfeit the ability to make the objection later.  The court analyzed the error and stated that the doctrine of forfeiture does not apply where there is plain error.  SEE MIL.R. EVID. 103(d).  The accused also has to show the court that there was an error, that it was obvious, and it affects a substantial right of the accused.  Citing United States v. Prevatte, 40 MJ 396 (CMA 1994).

Going back to Riley, the court stated:

"This tainted view is especially important when considered in connection with the nature of the Government's case.  As the Court of Criminal Appeals noted, the testimony of the prosecutrix was wavering; there were no other witnesses and no physical evidence or other direct corroboration at trial that an sexual acts too place."  44 MJ at 674.  In opposition to the child's testimony, appellant denied that an sexual activity had occurred and offered evidence of his good military character.  With the record in this state, we conclude that the obvious and substantial error in referring to the appellant's invocation of his right to silence "materially prejudice[d] [his] substantial rights."   ART 59(a).  The decision of the United States Navy-Marine Court of Criminal Appeals is reversed.  The findings and sentence are set aside.  United States v. Riley, 1 MJ at 391."

Does that last paragraph not sound like Edwin's case?  Child says it happened.  There are no other witnesses or evidence that anything happened.  No witnesses (although HS did state the Edwin's ex wife Gloria, her mother Donna, and a boy named James witnessed the event).  Gloria denied all accusations.  Donna and James were never interviewed per Special Agent Gauthier (NCIS Parris Island) and Special Agent Eric Muelenberg (NCIS Camp Pendleton) RECORD AT 290-293.

Special Agent Muleneberg also lied about receiving a confession from Edwin.  After having told the court that there was a video camera available in the room during the interrogation-he (Special Agent Muelenberg) did not consider using it because "his word should be good enough".  Obviously, his word wasn't good enough since it never happened and he has no proof to show that it did.

This was just a sample of the 75+ page document submitted to the Judge Advocate General on Wednesday September 1st.  I made it perfectly clear in the brief that 1. they fucked up BIG time and 2. I am filing a substantial lawsuit because of the fuck up.

The government wanted case cites to support my claims, they got it.  I also let the Government know that there is something called Vicarious Liability, meaning that the lies that started with HS, Paul and Stacey eventually snowballed to this wrongful conviction and everyone from the Prosecution to the Commandant of the Marine Corps has known about this.  By them refusing to remedy the situation, they are all liable and will be named in my upcoming lawsuit.

Pleading ignorance to the law does not excuse violating the law.