2007
United States v. Harrow, 65 M.J. 190 (the military
judge is permitted in a borderline guilty plea case to give weight to
the defense evaluation of the evidence).
United States v. Carruthers, 64 M.J. 340 (the exposure of
a witness’s motivation in testifying is a proper and important function
of the constitutionally protected right of cross-examination; however,
the Confrontation Clause of the Sixth Amendment does not prevent a
trial judge from imposing any limits on a defense counsel’s inquiry
into the potential bias of a prosecution witness; trial judges retain
wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination based on concerns
about, among other things, harassment, prejudice, confusion of the
issues, the witness’s safety, or interrogation that is repetitive or
only marginally relevant; the judge may restrict cross-examination when
the probative value of the evidence sought would be substantially
outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the members).
United States v. Green, 64 M.J. 289 (in a bench
trial, a military judge is not precluded from setting forth his reasons
for the sentence imposed).
(a military judge may not
interject his or her personal beliefs into the sentencing process).
2005
United
States v. Deisher,
61 M.J. 313 (when a servicemember is charged with violation of a lawful
order,
the legality of the order is an issue of law that must be decided by
the
military judge, not the court-martial panel).
(the
lawfulness
of an order, like other issues of law, may involve questions of fact
that must
be addressed by the military judge for the limited purpose of resolving
the
issue of law; the consideration of such factual matters by the military
judge
in the course of addressing an issue of law is distinct from, and does
not
preempt, the responsibility of a court-martial panel to address factual
matters
pertinent to the elements of an offense in the course of returning
findings on
the issue of guilt or innocence).
(when
the
defense moves to dismiss a charge on the grounds that the alleged order
was not
lawful, the military judge must determine whether there is an adequate
factual
basis for the allegation that the order was lawful; in the course of
acting on
such a motion, if the military judge rules that a specific set of words
would
constitute a lawful order under a specific set of circumstances, that
is a
preliminary ruling; the military judge’s ruling does not relieve the
prosecution of the responsibility during its case-in-chief of proving
beyond a
reasonable doubt the facts necessary to establish the elements of the
offense).
(the lawfulness of an order is
not an
element, but is an issue of law to be resolved by the military judge,
not
members; in this case, the military judge committed prejudicial error
in ruling
on the motion to dismiss by treating both the issue of lawfulness and
the
predicate factual aspects of the lawfulness issue as matters to be
resolved by
the members and by submitting the issue of lawfulness to the
members).
2002
United
States v. Quintanilla, 56 MJ 37 (a military judge
does not
exercise general jurisdiction over cases arising under the UCMJ; a
military
judge may exercise authority only over the specific case to which he or
she has
been detailed).
(a military judge may issue a warrant of attachment to compel the
presence
of a civilian witness, but only under very specific circumstances as
set forth
in RCM 703(e)(2)(G)(ii); military judges do not have the power to treat
non-compliance with a subpoena as a contempt of court).
United
States v. Humpherys, 57 MJ 83 (military judges
possess
ample authority to protect the attorney-client relationship during
consideration of disqualification motions, including the power to
examine
evidence in camera, seal records of any Article 39(a) sessions, exclude
unnecessary persons from hearings, and issue protective orders).
2001
United
States v. Anderson, 55 MJ 198 (military judge
lacks
inherent power to compel a victim to undergo nonconsensual examination,
but the
military judge and a trial counsel can use the persuasive powers of
their
offices to secure the witness’ consent to such examination).
1999
United
States v. Gray, 51 MJ 1 (rejecting claim that military
capital
sentencing procedure is unconstitutional because the military judge
lacks the
power to adjust or suspend a sentence of death that is improperly
imposed; see
United States v. Loving,
41 MJ 213, 297 (1994), aff’d on
other
grounds, 517 U.S. 748 (1996)).
United
States v. Biagase, 50 MJ 143 (a military judge, as the
“last
sentinel” to protect a court-martial from the effects of unlawful
command
influence, can intervene and protect the proceedings).
United
States v. Roth, 52 MJ 187 (sequestration and sanctions
for
violations of a sequestration order are matters within the discretion
of the
court, and such matters will be reviewed on appeal under an abuse of
discretion
standard).
(MRE 615 dealing with exclusion of witnesses from the court room is
a rule
of evidence which may be relaxed during the sentencing portion of the
trial).