Legal Pleadings

In The

Supreme Court of the United States

JOHN EDMOND HATLEY, Petitioner

V.

THE UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI

On appeal from
US Court of Appeals
For the Armed Forces
USCA Dkt. No.110671/AR
Crim.App. No. 2009329

John Edmond Hatley #87613
1300 North Warehouse Rd.
Ft. Leavenworth, KS 66027-2304
*In Pro Persona
August 28 , 2013

 

PETITION FOR A WRIT OF CERTIORARI

The petitioner, John Edmond Hatley, respectfully prays that a writ of certiorari issue to review the decision of the United States Court of Appeals for the Armed Forces in this case and the constitutional violations inherent in the UCMJ which administers the military tribunal process.

ISSUES PRESENTED

1. Does the (Uniform Code of Military Justice) UCMJ Article 67a violate a soldier’s 5th amendment, 6th amendment and 14th amendment constitutional rights?

2. Is the UCMJ equally applied to the conduct of officers?

3. Does undue command influence exist within the UCMJ tribunal system and thus impact the judicial system for enlisted personnel?

4. Does the conspiracy among the judge and prosecutors constitute grounds for former MSG Hatley’s sentence to be vacated?

PARTIES TO THE PROCEEDINGS BELOW

This petition stems from appellant proceedings in which petitioner, John Edmond Hatley, was the appellant before CAAF. Former MSG Hatley is a prisoner sentenced initially to a life sentence, subsequently reduced to forty years and is in the custody of Colonel Sioban J. Ledwith, Commandant of the USDB, Ft. Leavenworth, Kansas. Parties to the proceedings are: United States of America, Secretary of Defense, Secretary of the Army, Department of the Army and the Department of Defense.

TABLE OF CONTENTS

ISSUES PRESENTED……….i

PARTIES TO THE PROCEEDINGS BELOW……….ii

TABLE OF CONTENTS……….iii

TABLE OF AUTHORITIES……….iv, v and vi

OTHER AUTHORITIES……….vi

PETITION REQUEST……….1

STATEMENT OF JURISDICTION……….2

STATEMENT OF THE CASE……….2

STATEMENT OF FACTS……….3,4,5,6

ISSUES AND SUPPORTING ARGUMENTS……….7 through 27 inclusive

REASONS FOR GRANTING THE WRIT……….28

CONCLUSION……….29

APPENDIX……….30

TABLE OF AUTHORITIES

CASES

U.S. v. Alu,
246 F.2d 29 2nd Cir. (1957)……….22,20

U.S. v. Bauerbach,
55 M.J. 501 (C.A.A.F. 2001)……….14, 15, 19

U.S. v. Carolene Products Co.,
304 US 144 (1938)……….17

U.S. v. Gandy,
9 U.S.C.M.A. 355 (1958)……….21

U.S. v. McCants,
10 U.S.C.M.A. 346 (1959)……….21,22

U.S. v. Stone,
13 U.S.C.M.A.52 (1962)……….21

Brown v Board of Education of Topeka
347 US 483 (1954)……….10

Plessy v Ferguson,
163 US 53 (1896)……….10

U.S. v. Thomas,
22 M.J. 388, 393, (C.M.A. 1986 )……….16, 18

STATUTES, RULES AND REGULATIONS

U.S. Const. Amend. V, VI, XIV……….8, 9,17

28 U.S.C. §1254(1)……….1

28 U.S.C. §1651(a)……….2

Sup. Ct. R. 13……….2

UCMJ Article 134, (1) (2)……….12, 17

Model Code of Jud. Conduct R. 1.1
(2008)……….25, 26

Model Code of Jud. Conduct R. 2.2
(2008)……….25, 26

Code of Jud. Conduct for Army Trial and
Appellate Judges R. 1.1 (2008)……….25, 26

Code of Jud. Conduct for Army Trial and
Appellate Judges R. 2.2 (2008)……….25, 26

OTHER AUTHORITIES

A Bill to Unify, Consolidate, Revise, and Codify the Articles of War, the Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard, and to Enact and Establish a Uniform Code of Military Justice: Hearing on H.R. 2498 Before the Subcomm. on Armed Services, 81st Cong. (1949)……….7

OTHER SOURCES OF DATA

The Invisible War-Documentary regarding sexual assaults in the military……….5

CNN-Internet news announcement, May, 2012……….11

US News & World Report
Author: Edward Pound……….

Trial Transcript……….3, 21, 22, 23, 24, 25, 27

CID Investigative Reports……….3, 4

APPENDIX

United States Court of Appeals for the Armed Forces:
USCA Dkt. No. 11-0671/AR
Crim. App. No. 20090329

PETITION FOR A WRIT OF CERTIORARI

Petitioner John Edmond Hatley respectfully requests that this court review and accept for hearing and determination his application for Writ of Certiorari in accordance with its authority under 28 U.S.C. §1254 (1).

STATEMENT OF JURISDICTION

The order of the court of appeals denying former MSG Hatley’s appeal allows him to file before the United States Supreme Court. This court’s jurisdiction is invoked pursuant to 28 U.S.C. § 1254 (1), 28 U.S.C. § 1651 (a) and U.S. Supreme Court Rule 13.

STATEMENT OF THE CASE

Procedural history

Before an enlisted panel sitting as a general court martial, petitioner was convicted, contrary to his plea of not guilty of four counts of pre-meditated murder. The Army Court of Criminal Appeals affirmed the conviction and the Court of Appeals for the Armed Forces denied review.

STATEMENT OF THE FACTS

Former MSG John Hatley was accused of killing four insurgents that had been detained by the patrol that both former SSG Jess Cunningham and former MSG Hatley were in. Former MSG Hatley was convicted along with four other soldiers. The chief accuser, former SSG Cunningham, traded his accusation against former MSG Hatley in exchange for complete exoneration on all pending and prospective legal charges. Despite the fact that with Cunningham’s undeniable history of violence, threats and sexual misconduct, no action whatsoever was taken against him by the military.

Cunningham’s military history included assaulting two NCO’s on two separate occasions and threatening an officer with great bodily harm. SSG Cunningham was verbally reprimanded and counseled for taking photos of a female soldier in various states of undress and threatening to post them on the internet. The United States Army let him walk out the door with an honorable discharge and full benefits. His conduct was ignored and went unpunished.

Former MSG Hatley had advanced the Article 15 against SSG Cunningham and directed another NCO to reprimand and counsel SSG Cunningham for his conduct toward female soldiers.

Cunningham had an Article 15 drawn against him at the time that he made the accusations against former MSG Hatley. The lapse of time between when the alleged killings occurred and when SSG Cunningham traded information was approximately 10 months. As a result of the trade of the accusation made by SSG Cunningham, Army CID (Criminal Investigative Division) conducted a thorough investigation, which included sending an Army dive team to Iraq to search the location of the alleged killings and field interviews with local Iraqi citizens. Additionally, CID agents conducted a field interview of persons identified as family members of the alleged victims.

These family members reported that none of the men in their family were missing. After this exhaustive search and thorough investigation, there was no evidence to support the allegation that the four men detained were actually missing much less that they had been murdered. No bodies found, no forensic or physical evidence to support the allegation that a crime had even been committed. The conviction resulted exclusively from the statements of soldiers testifying under grants of immunity, threats and the chief accuser SSG Cunningham who was making a last ditch effort to avoid his pending legal issues.

CID investigative statements were obtained through threats, coercion and intimidation. One soldier was told that if he didn’t have information that would help convict former MSG Hatley, that he would probably be sent to prison. This same soldier was taken into custody and during the evening hours of his first day in custody, he was allowed to drink alcoholic beverages with his CID escort. This same soldier had a history of problems with alcohol and yet no limit was set on his drinking with a CID escort, who was with him the entire time. The CID escort continued to discuss the allegations with him as the soldier continued to drink alcoholic beverages.

Another soldier that wasn’t even present at the time of the alleged shootings, was handcuffed and kept in custody for over eight hours in an attempt to force a statement from him. Another soldier was told that he would be deported unless he could come up with something that would help the investigation against former MSG Hatley. After a second interview and another threat of deportation, subsequently this solider was able to “recall” something that would keep him from being deported. Yet another soldier was forced to confess and by being told that unless he did, he would go to prison and someone else would raise his children.

It is routine practice that CID will obtain a written statement from persons investigated and/or interviewed. It is also routine practice that the written statements are typed out by CID agents. More than one soldier interviewed regarding the SSG Cunningham allegations claimed that their written statements differed from the statements typed by CID agents. Material facts were altered in at least two soldier’s statements in the investigation of former MSG Hatley. It is also a routine practice by CID that witnesses are badgered in an aggressive manner until the desired statement is produced.

Not surprisingly, when the CID tactics were employed, stories changed and pre-trial agreements became a routine offer for cooperating by providing the “right story” to CID. It is significant to note that during the time these allegations were being investigated, SSG Cunningham was an E-6 and former MSG Hatley was on the promotions list for E-9. This is known as trading up.

Cunningham’s desire to avoid consequences for his own actions made former MSG Hatley a target.

Former MSG Hatley represented a far greater judicial victory than taking on the real problem of a SSG with a history of violence, threats and gross sexual misconduct.

The military prosecutors made a conscious choice to prosecute former MSG Hatley on a fabricated story that had no evidence to support it and let a soldier that had engaged in violent acts, threats and gross sexual misconduct walk away with an honorable discharge and full benefits. Permitting Cunningham to walk unscathed from even the lowest level of discipline does not reflect the discipline that the military claims to maintain through the UCMJ. It is the opposite: former SSG Cunningham represents the abject failure of the UCMJ to administer non-judicial punishment to a soldier that was a problem. Instead the pursuit became one of a high ranking NCO that attempted to administer discipline.

ISSUES AND SUPPORTING ARGUMENTS

ISSUE 1:

Does the (Uniform Code of Military Justice) UCMJ Article 67a violate a soldier’s 5th,6th, and 14th Constitutional Amendment Rights?

The legislative history of the UCMJ shows that, at the inception of the UCMJ, the concerns presented at that time are still occurring in the present. Congressional hearings held to establish the UCMJ were conducted in 1949. The potential problems of the UCMJ were stated clearly by testimony from John J. Finn on behalf of the American Legion. He stated in part: “It is my firm conviction that if adequate civilian review is had of every case in which a discharge, other than honorable or under honorable conditions, or a dismissal from the service, or in cases where sentences of death or 1 year or more have been assessed, there will be a substantial lessening in the number of complaints against the type of justice afforded in the military courts.” (emphasis added)

The fact that these same issues continue to plague the military sixty-four years later is the strongest piece of evidence that the UCMJ does not function properly as a tool of discipline and clearly is a failure at criminal prosecutions.

The 5th Amendment of the Constitution guarantees the Right to Due Process. The UCMJ is ill equipped to protect the constitutional rights of the members of the military because it is class sensitive and panders to rank. Without dispute, officers are treated differently than enlisted service members. On the first day of the trial of former MSG John Hatley this is clearly shown by the prosecutor’s deference to the rank of officers that were serving on the panel of jurists. The opening day of former MSG Hatley’s trial, the prosecutor greeted the highest ranking officers on the jury panel by their rank. “Good morning, Colonel Goho, Colonel Doerer….. (emphasis added) The enlisted members of the jury did not receive rank sensitive greetings.

A military judicial tribunal is to be devoid of anything that would indicate a lack of impartiality. Former MSG Hatley’s trial is a testimony to the complete failure for that requirement to be met; and that was just the first day of the trial.

The 6th Amendment to the constitution states, in part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial….” (emphasis added)

Judge Nance, on the first day of the trial explained his role to the defendant. Former MSG John Hatley was given a clear outline of the role and responsibilities of the military judge by Judge Nance.

By clarifying his role, Judge Nance demonstrated his own level of understanding and the significance of his obligation as trial judge. His discussion included the full scope of his authority and that he had to insure the proceedings remained impartial.

Despite Judge Nance’s statements, he allowed into evidence a document that had been created solely by the prosecution and had not been previously provided to defense counsel until that first day of trial. The document that Judge Nance allowed into evidence was a critical timeline that replaced a timeline that had been stipulated to by both prosecution and defense. Judge Nance allowed a unilaterally created document into evidence and assisted the prosecution by outlining the process by which the document could be admitted. Judge Nance was an officer and the prosecutors were officers. This was nothing less than a conspiracy which is a permanent part of the trial record that clearly shows officer bias of an enlisted service member who was on trial for his life. The document that Judge Nance permitted into evidence was a document that conveniently negated the defense’s contention that former MSG Hatley’s right to speedy trial had been violated.

The 14th Amendment of the US Constitution states in part that no person shall be deprived of “life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis added) Constitutional rights are set aside when the UCMJ becomes the governing document.

When the UCMJ becomes the governing document for a service member it casts a shadow over every right the service member possesses’. It is nothing short of a display of arrogance that the UCMJ could supplant the rights of the US Constitution, but it does. Permitting only portions of an individual’s constitutional rights is equivalent to having no rights at all.

The disparate treatment of officers as compared to enlisted is part of the military system. It is a system of distinction between ranks. It would be naïve’ to embrace the notion that somehow this rank distinction does not impact the military tribunal process.

In Brown v Board of Education of Topeka, 347 U.S. 483 (1954) it was found that African American children had equal entitlement to access education. The pre-cursor to Brown v Board, supra was Plessy v Ferguson, 163 U.S. 537 (1896). In Plessy, supra, the Doctrine of “Separate but Equal” was established and was an accepted and employed practice of continuing to segregate children in the educational process. Separate but equal was an abject failure in the educational process. And that same concept that is being used today, i.e.: Separate but equal justice for service members is an abject failure as well. The question is not without foundation. US News and World Report has documented a flawed criminal justice system in which injustices can easily occur. These cases rarely make headlines.

When a service member finds themselves in the situation of being on trial for their life, the last bastion of hope between them (and perhaps a sentence of life in prison or even execution) is the UCMJ, not the US Constitution as it should be. It is patently absurd at tragic levels to think that the UCMJ could in any way replace the US Constitution for criminal proceedings. But that is what currently exists.

ISSUE 2:

Is the UCMJ equally applied to the conduct of officers?

It is without dispute that over the preceding 12 months, this country has born witness to one of its highest ranking officers violate the UCMJ and walk away untouched for his violations. The noted article from CNN succinctly points out the depth and seriousness of General David Petraeus’ conduct. Yet no action through any military tribunal occurred.

“CNN: Unlike many stories about powerful Washington figures having secret affairs, the downfall of spy chief David Petraeus goes beyond sex. The scandal surrounding the four-star Army General who once ran the wars in Iraq and Afghanistan, also involves questions of national security, politics and even the September 11 attack on the U.S. consulate in Benghazi, Libya, that left four Americans dead. Petraeus, 60, resigned Friday after acknowledging he had an affair with a woman later identified as his biographer. (emphasis added)

At the writing of this Writ, there is an inmate in US Disciplinary Barracks (USDB) that was removed from military retirement status, placed back on active duty, was tried and convicted for actions that occurred during his military career. His case represents the length of the judicial reach of the UCMJ and the depth and the power that the UCMJ carries even if a member of the military is retired. It should be noted that the inmate currently in Ft. Leavenworth was enlisted.

The obvious question raised in the facts surrounding General Petraeus’ act of adultery is: Why wasn’t General David Petraeus charged with any violation of the UCMJ ? The singular response is: Because the application of law, within the ranks of the military is vastly different for enlisted compared to officers. If it were not so, either General Petraeus would be serving time in the USDB or the inmate that was removed from retirement status, in order to be charged with a crime, would not be serving time.

The UCMJ, Article 134, Section (1) (2) , states in part: Elements (1) That the accused wrongfully had sexual intercourse with a certain person; (2) That, at the time, the accused or the other person was married to someone else; and (3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

There is no doubt that the violation of the UCMJ occurred. General Petraeus himself acknowledged his conduct and apologized for it. General David Petraeus was not held accountable for his actions nor for the consequence of his actions that arguably had an impact on national security issues.

It is inherent in the democratic process that the rights guaranteed to citizens under the US Constitution cannot be abridged. Further, these rights are extended to the most humble and limited class of individuals; they are blind to class, income, profession and personal value systems. They belong, unrestrained, to everyone, except enlisted service members of the armed forces. That is demonstrated most clearly by the unique treatment of General David Petraeus and the malignant lack of accountability that has been granted to him. Constitutional rights cannot be compromised due to the station in life of any person. However, over the course of the past 50 years, these rights have been modified, altered and in some cases, have become completely unavailable for enlisted members of the armed forces. The UCMJ attempts to balance soldiers’ constitutional rights against the peculiar needs of the military through their judicial process, but it fails to fully incorporate the US Constitution within its own regulations. It is unconscionable to think that there is any substitution for the constitutional rights of any individual, regardless of whether or not their profession or station in life is professed to have peculiar needs.

There is no argument that the US Military, like any other employer with its unique and peculiar needs, has a right to take disciplinary actions against members of its rank. However, when a criminal act occurs, the US Constitution should not be replaced with biased and rank sensitive rules and regulations.

The UCMJ cannot be considered an adequate substitution for constitutional rights simply because of the unique or peculiar needs of the military. Nor should the UCMJ be permitted to determine which of the rights a soldier should have.

In U.S. v Bauerbach, 55 M.J. 501, 502 (C.A.A.F. 2002), it was held that the UCMJ violated the constitutional rights of 13 black soldiers who were executed within 48 hours of their convictions. There was no adequate appellate process for these soldiers in the military at that time. Would those soldiers have been executed 48 hours after their conviction, with no right to appeal, if they had been tried in a civilian court?

The authority granted to the US Military through the UCMJ does not contain a functional system of checks and balances. The UCMJ is a system of “trial and error”. They may “learn from their errors” but it will be at the expense of others, such as: taxpayers’, military careers and soldiers’ lives. These costs will continue to increase for as long as the US Military is permitted to be the sole judicial body by which any soldier is investigated, charged, judged and convicted of a crime.

The UCMJ may be best suited for their unique needs to administer non-judicial punishment. But when a service member is on trial for their life, there is little that the UCMJ can offer in the way of the vast safe guards that the U S Constitution provides.

The UCMJ has stark differences between Federal Court Rules and military tribunal justice. The rules of evidence differ, the method by which evidence is collected is different and even the ability to cross examine a witness is different.

These differences represent nothing less than a malignant compromise of justice at the service member’s expense. There is a subtle undercurrent of arrogance incorporated within the UCMJ that unmistakably places the constitutional rights of the soldier exclusively in the hands of the military. There is no other governmental profession or agency that is permitted this latitude.

“The Uniform Code of Military Justice, enacted in 1950, was Congress’ evolutionary response to public concern and demands for increased procedural due process in military justice that began with the “Texas Mutiny” and “Houston Riot” cases of 1917.” United States v. Bauerbach, 55 M.J. 501, 503 (C.A.A.F. 2001).

Former MSG Hatley’s case best illustrates that those concerns continue today. Former MSG Hatley is a highly decorated soldier who served honorably in combat for three deployments and rose to the highest rank for an NCO. He was branded as a murderer based on the fabricated story of a soldier that had a history of discipline issues. Former MSG Hatley became a victim of the unscrupulous tactics of CID and was targeted by a soldier that sought legal refuge for his own wrongdoing in exchange for former MSG Hatley’s life.

In US v Thomas, 22 M.J. 388, 393 (C.M.A. 1986) the court said that the military judge is the “last sentinel” in the trial process to protect a court-martial from unlawful command influence. Because the inherent power and influence of command are necessary and omnipresent facets of military life, everyone involved with both unit command and in military justice must exercise constant vigilance to protect against command influence becoming unlawful. It was held in Thomas, id that the unlawful command influence was an error of constitutional dimensions.

There is no clear bright line of distinction between Judge Nance and former SSG Cunningham. Both engaged in false statements to meet a specific goal: Gain the conviction of former MSG Hatley. Judge Nance’s conduct was the exact opposite of what the ruling in Thomas, supra, held. Judge Nance was not a sentinel for the proceedings, much less the last sentinel. He was nothing more than a co-conspirator along with two prosecutors that were solely committed to gaining a legal victory of a high ranking NCO. The trial record is the “last sentinel” for former MSG Hatley. Let the record speak for itself.

In stark contrast, General Petraeus, who had and continues to have insurmountable evidence against him for violations of the UCMJ never even saw the inside of a court room. General Petraeus not only violated Article 134, (1), (2) of the UCMJ, he brought dishonor to the service and arguably may have provided confidential data to someone that was not entitled to receive it. His offenses against the UCMJ are well known publicly and the abject failure for any military judicial action against him is equally well known. This is an obvious display of bias in favor of officers The 5th Amendment affords all citizens equal protection of their constitutional rights. The 5th Amendment provides citizens with due process of law, and with due process of law comes equal protection. United States v. Carolene Products Co., 304 U.S. 144 (1938). The UCMJ reflects a flawed judicial system that treats a class of persons (soldiers) differently than others as it pertains to their constitutional rights.

Former MSG Hatley’s career was a reflection of his dedication and service to our country. Former MSG Hatley’s record includes recognition for honor, valor, achievement and bravery. It was the fatally flawed procedures of the UCMJ that led to his conviction. From the investigative methods of CID, Judge Nance conspiring with the prosecutors to enter into evidence a fraudulent document to the officers on the jury panel, former MSG Hatley was never given due process. Denying an American citizen access to the US Supreme Court based solely on the fact that he is a member of the US Military is not permitted by the 5th Amendment of the Constitution.

ISSUE 3

Does undue command influence impact how the UCMJ is applied to enlisted personnel?

The legislative history of the UCMJ repeatedly makes reference to the struggle between the needs of discipline and the needs of justice. There should be no struggle. There should be no question in the minds of any service member that their constitutional rights, that they fight wars to protect for others, are equally held by them.

Former MSG John Hatley’s case best illustrates that these concerns continue today. Former MSG John Hatley is a highly decorated soldier who served honorably in combat for three deployments and rose to the highest rank for an NCO. He was branded as a murderer based on testimony of soldiers that he had counseled for Article 15 misconduct and various infractions. Former MSG John Hatley became a victim of the military criminal justice system and was targeted by a soldier that sought refuge for his own wrongdoing at the expense of former MSG Hatley’s life.

In US v Thomas, 22 M.J. 388, 393 (C.M.A. 1986) the court said that the military judge is the “last sentinel” in the trial process to protect a court-martial from unlawful command influence. Because the inherent power and influence of command are necessary and omnipresent facets of military life, everyone involved with both unit command and in military justice must exercise constant vigilance to protect against command influence becoming unlawful. In Thomas, supra, it was held that unlawful command influence was an error of constitutional dimensions. (emphasis added)

Judge Nance’s conduct draws virtually no distinction between himself and the accusers that falsely testified against former MSG Hatley. If Judge Nance is, as Thomas, supra states, the “last sentinel” and must exercise constant vigilance against unlawful command influence, when he abandons that post, justice or any semblance thereof evaporates for the accused.

“The Uniform Code of Military Justice, enacted in 1950, was Congress’ evolutionary response to public demands for increased procedural due process in military justice that began with the “Texas Mutiny” and “Houston Riot” cases of 1917.” United States v. Bauerbach, 55 M.J. 501, 503 (C.A.A.F. 2001). The plain language of the statute, the Congressional Record and public sentiment prior to enactment of the UCMJ, all show that Congress intended to give enlisted men and women the right to an enlisted panel as a means to better protect their constitutional rights. It is no less urgent today than it was in 1950 for the US Supreme Court to summon the political and legal courage and act to stem the flow of the travesty against justice that the UCMJ creates.

The military tribunal process represents a vacuum of unilateral thinking. There appears to be only a narrow demonstration of the judicial premise that a soldier is innocent until proven guilty. This compromised thought process begins at the fundamental level of the CID investigation and their nefarious investigative techniques.

ISSUE 4:

Does the conspiracy among the judge and prosecutors constitute grounds for former MSG Hatley’s sentence to be vacated?

Judge Nance, on the first day of the trial, explained his role to the defendant. Judge Nance outlined the role and responsibilities of the military judge and thus demonstrated his own level of understanding and the significance of his role as trial judge. His discussion included the full scope of his authority and that he had to insure the proceedings remained impartial.

Despite Judge Nance’s statements, he allowed into evidence a document that had been created solely by the prosecution and had not been previously provided to defense counsel. The document that Judge Nance allowed into evidence was a critical timeline that replaced a timeline that had previously been stipulated to by both prosecution and defense. After detailing to the defendant his obligation that the proceedings remain impartial, he willfully disregarded the UCMJ and the accused’s rights, as well as his own instructions to the defendant and conspired with the prosecutors to present a document that would clearly support a key element of the prosecution’s case: A timeline that was critical to the prosecution’s argument. The two prosecutors conspired along with Judge Nance to commit an act that they knew was wrong.

The opportunity to tailor a witness’ testimony to the needs of the government’s case is maximized if testimony of an attorney who is interested in the successful presentation of the case is permitted to testify. U.S. v. Alu, 246 F.2d 29, 34 (2nd Cir. 1957). In criminal litigation, when there is so much at stake for the defendant, the Bench and Bar demand that the principle designed to ensure objectivity in the presentation of evidence is followed meticulously. Id. (emphasis added)

Judge Nance recklessly disregarded his legal obligation to the defendant and proceedings by allowing the prosecutors to introduce a new timeline and further to permit the prosecutor to testify to the veracity of the document that Judge Nance and the prosecutors had conspired to enter into evidence. That single detour from the procedures of criminal litigation on the first day of trial is a clear bright line between impartial proceedings and the abject lack of impartial proceedings. Judge Nance was not the “last sentinel” in the courtroom, he was nothing more than a man willing to compromise his judicial ethics to prevail.

Unless it is absolutely necessary for proper disclosure of truth, counsel should not testify or act as witness, especially when it comes to the truthfulness of evidence admitted during trial that is unsupported by documentary evidence. U.S. v. Stone, 13 U.S.C.M.A. 52, 56 (1962); U.S. v. McCants, 10 U.S.C.M.A. 346, 350 (1959); U.S. v. Gandy, 9 U.S.C.M.A. 355, 361 (1958).

In Stone, supra, it shows the risk of what the result is when there is an improper admission into evidence by a document that is unsupported by documentary evidence. The consequence was also clearly demonstrated in former MSG John Hatley’s trial. On the first day of trial, the conspiracy committed by the judge and prosecutors completely altered the legal landscape of former MSG Hatley’s case. The conspiracy was without dispute, it is forever a part of the trial record. Additionally, the judge himself made a salient argument that essentially acknowledged that if the concocted document wasn’t admitted, the prosecution’s case would not prevail. The judge not only knew how significant that document was, he discussed it on the trial record; further he outlined how the prosecution could enter it into evidence. Three officers on the first day of trial openly conspired to put an enlisted service member’s rights aside so their case could prevail.

In Alu, supra, the government called upon Gliedman as a witness to establish materiality of defendant’s statements to the Grand Jury. U.S. v. Alu, 246 F.2d 29, 33 (2nd Cir. 1957). The Second Circuit held that the United States Government and its attorneys should not be called as witnesses in trials because of the subjectivity and bias that could result. Id. at 33-34.

The rule that prosecutors should not testify at their own trials, unless absolutely necessary, has carried over to the United States Military Court of Appeals as well. U.S. v. McCants, 10 U.S.C.M.A. 346, 350 (1959). The court held it was improper and undesirable for the prosecutor to use his own credibility to rebut the defendant’s witness in his closing argument.

In the case at hand, the judge was equally culpable in compromising the trial proceedings by allowing the prosecutor to take the witness stand and personally testify to a document that the prosecution had created and never previously shown to the defense. The trial record clearly shows that the prosecutor, by his own statements, had made “many changes” to the timeline. (emphasis added)

Former MSG Hatley was charged with multiple counts of pre-meditated murder. He had a stellar and exemplary military career. He was on trial facing a life sentence, and Judge Nance allowed the prosecutors to introduce into evidence a previously undisclosed, unilaterally-created, self-serving document that would only further the government’s interest, by any means possible, in obtaining a conviction against former MSG Hatley.

In former MSG Hatley’s case, the trial judge disregarded a law that has been well-established in both the federal and military courts by allowing the prosecutor to testify to the veracity of the new timeline. This timeline was totally devoid of any documentary evidence to support it. The only “evidence” offered to support the veracity and accuracy of the document was the prosecutor himself. The prosecutor created the document and testified that it was accurate, despite acknowledging there were “many changes” to the original stipulated timeline.

The significance of this timeline was explained by the judge: “Right—it’s not just one of the facts; it’s a very important fact. I mean, if there was no arrest, Article 10 is out the window.” (emphasis added) Not only did Judge Nance acknowledge, on the record the significance of the timeline, but he explained that without it a prima facie violation would occur. Subsequent to that discussion, Judge Nance admitted the document into evidence. Judge Nance’s own words, on the record clearly show, without dispute, that he knowingly conspired to deliberately create a record that would aid in the conviction of former MSG Hatley.

Additionally, the prosecutor stated: “No, Your Honor, it’s the government’s contention that attached chronology is the government chronology of what was done on the case.” (emphasis added)

Judge Nance, in part stated: “Well, documents, like the documents attached as enclosures to the stipulated chronology, are documentary evidence which the court considers as evidence…..” He further explained: “A chronology that’s not a stipulated chronology, is just what you think the facts are, similar to something that would appear in a pleading; in fact, it is a pleading. Those facts must be proven by a preponderance of the evidence for the Court to take them as fact…….” (emphasis added) Additionally, Judge Nance stated: “So, no, your presumption is wrong. Your recitation of the facts is not fact; it’s your version of the facts.” (emphasis added)

The prosecutor stated that the “evidence” that would support the timeline was the prosecutor swearing it was accurate. This violates the well-established principle identified in U.S. v. Alu, supra, that objectivity has to be ensured in the presentation of evidence. Without any other evidence that the new timeline is accurate, the prosecutor could be falsely stating portions (or all) of the timeline to best support his case. The record even states that the trial judge was aware of this problem. He stated, “A chronology that’s not a stipulated chronology, is just what you think the facts are… it is a pleading. Those facts must be proven by a preponderance of the evidence for the Court to take them as fact for the purposes of this motion.” He even stated later on that attesting to the facts as being true and accurate is not sufficient. But disregarding his own legal opinion, he allowed the testimony of the prosecutor.

The trial judge acted contrary to well-established case law and was well aware that the prosecutor’s testimony was not sufficient to prove the facts in the new timeline by a preponderance of the evidence. However, the judge still allowed the new timeline to come into evidence. There was nothing other than the prosecutor’s word to support the timeline of events.

Furthermore, it was not absolutely necessary to allow the prosecutor to testify for proper disclosure of the truth, because the prosecutor and the defense had already stipulated to a timeline that both prosecutor and defense had agreed was accurate.

If prosecutors are allowed to concoct or create evidence that best suits their side of a military tribunal, where a defendant faces multiple criminal charges, it casts doubt over the integrity of the prosecutors. When Judge Nance detailed the proper procedure for the prosecution to follow and then allowed it to be entered into evidence that blatant act mortally compromised the entire military tribunal. The judge who served as the sentry of the proceedings compromised former MSG John Hatley’s constitutional rights by his own actions. For that moment in time, the judicial process ceased to exist.

By disregarding the prior decisional law and allowing the prosecutor to admit a document that was not proven by a preponderance of evidence, the trial judge violated both 1.1 and 2.2 of the ABA Model Code of Judicial Conduct and the Code of Judicial Conduct for Army Trial and Appellate Judges. He patently disregarded case law that holds prosecutors cannot testify in support of their own proffered evidence. By allowing the prosecutor to do so, the trial judge skewed the safeguards put in place in our judicial system to insure that the trial is fair, impartial and that justice is served.

The trial judge displayed favoritism and partiality towards the prosecutors by allowing in evidence that he knew did not satisfy the evidentiary standard; this lack of impartiality violates Rule 2.2 of both Codes. Therefore, the trial judge exhibited judicial misconduct. Judicial misconduct occurred when the judge permitted the prosecution to set aside a pre-trial stipulated agreement regarding the timeline of events.

When a trial judge blatantly disregards military case law and demonstrates preferential treatment to the prosecution, there has been judicial misconduct and the case should be declared a mistrial. Both Rule 1.1 of the ABA Model Code of Judicial Conduct and Rule 1.1 of the Code of Judicial Conduct for Army Trial and Appellate Judges states, “A judge shall comply with the law…” This law includes decisional law created by other judges in the same jurisdiction, as defined in both Codes. Furthermore, both Codes state in Rule 2.2 that “A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.”

Judge Jeffrey Nance demonstrated, on the record, that he had a blatant and reckless disregard for both the law and constitutional rights of the defendant. On the first day of trial, with such a clear and undeniable act of bias against the defendant, the entire military tribunal was tainted from that point forward in the proceedings. Judge Nance did not commit harmless error; his actions were deliberate and methodical.

The trial record reflects, without dispute, Judge Nance’s judicial misconduct. Judge Nance’s bias against former MSG Hatley is reflected throughout the trial record. Judge Nance not only permitted the document to be entered into evidence, he did so knowing that there was a stipulated pre-trial agreement between the Defense and the Prosecution. This tossing aside of stipulated fact serves a single purpose – to aid the prosecutor in gaining a conviction at the expense of former MSG Hatley’s constitutional right to a fair trial.

When Judge Nance provided assistance to the prosecution as the trial record shows; his conduct clearly displays a reckless disregard for the rights of the accused and undermines the very concept of a fair trial.

The judicial misconduct on this single point is so egregious, that former MSG Hatley’s trial was mortally compromised at that moment.

REASONS FOR GRANTING THE WRIT

A. The UCMJ violates the 5th, 6th and 14th Amendments of the US Constitution

B. The UCMJ is not equally applied to the conduct of officers

C. Undue command influence impacts how the UCMJ is applied to enlisted personnel.

D. Judge Nance’s conduct, as reflected in the record, in addition to the prosecutors is so egregious that former MSG Hatley’s trial was mortally compromised.

CONCLUSION

The petition for a Writ of Certiorari should be granted

Respectfully submitted,
John Edmond Hatley

APPENDIX

(Other Authorities, iii)

United States Court of Appeals
For the Armed Forces
Washington DC
Order Denying Petition

USCA Dkt. No.
Criminal Appeal No.

United States
John E. HATLEY

11-0671/AR
20090329

Appellee
Appellant

 

On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is by the Court this 4th day of January, 2012.

ORDERED: That said petition and the same is hereby denied.

For the Court,
/s/ William A. Decicco
Clerk of the Court

cc: The Judge Advocate General of the Army
Appellant Defense Counsel (POTTER)
Appellate Government Counsel (WHITE)

recent comments

  • Tony Wysinger

    Free John Hatley TW - Krum, Tx.

  • Medina

    I got to serve under him in bagdad , and he was the greatest nco i have ever met. He truly loved his soldiers. The justice system made a mistake ,and imprisoned a great man and here. All of damage inc. 2plt never forget how he took us in ,and the things he taught us.

  • Clifford Gabriel

    Sara 2 more book will be sent out to Afghanistan to SSG Parker and SFC Fernandez. Thank you for the books, the look in the Soldiers eyes when they turn the pages it brings them back to happy moments in their lives. Thank you again. SSG Gabriel

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