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The Army Lawyer (Jun . , -I Headquarters,.Departmentof the Army ’ .. Department of the L * June 1988 . I . Table of Contents . Articles 1. The Trial of Major-Henry‘Win-A National Disgrace .................................................3 Captain Glen W. Worn Category I1 DifferingSite Conditions in Construction Contracts .........:. ......................... .’:.... 10 Captain William R Medsger Lawyer Referral ...Do’& and Taboos ......................................... ............... 18 Mark E. Sullivan .I USALSA Report ................................................................................. 21 United States Army Legal Services Agency The Advocate for Military Defense Counsel........................................................ 21 DAD Notes..................................................................................21 The Constitutionalityof “Show and Tell”-The Court of Military Appeals Says: Yes, No, Maybe So; The Hazards of Government Creativity; Carter: A New Challenge for ,the DefenseCoUnsll ~ . Trial Defense Service Notes.. ..................................................................... 25 Making Military Counsel “Available”:Putting the Burden Where It Belongs.. ....................... 25 Captain Alan D. Chute Time Is of the Ea-: A Defense Counsel’s Guide to Speedy Trial Motions......................... 29 Captain Thomas :W.“Wrschak Military Rule of Evidence 410: The Pitfalls of Plea Negotiations.... ........... 32 Captain Wdliam U.Ibbotson Trial Judiciary Notes...................................................... Courts-Martial antempt-An Overview ;..................-....:. ....:”...............:.......... 38 Lieutenant Colonel David L. Ifennessey Basic Details of Trial Preparation......................... .’. ... ................. ............. 41 Lieutenant Colonel Mlchael B. Kearns Note: New Rule on Peremptory Challenges ................:...................................... 42 $ 7 Government Appellate Division Note ..........................i.................................. 42 The Providence Inquiry: Trial Counsel’s Role ....................................................42 Captain Randy V. Cargill .,. Contract Appeals Division Trial Note.. ...........................................................46 ... Hinddght-Litigation That Might Be Avoided ................................................... 46 Mdor Edward J. Kinberg I .1 PCourtNote ............................................................................47 Practice Notes .......................................................................... 47 Instrudtors, The Ju e Advocate General's School F I . ~­ I criminal Law Notes .... :...I.:.., ....:...................................... Confrontation and Memory Ldss; Post-Trial Submissions e Aaused-A NCW Requirement for the St#f Jud4e Advocate . ! .2 I Administrativeand Civil Law Notes .............................................................. 50 Rccent'Changesin Accommodation of Religious Practices; New Prohibition Against Active Participation in Extremist Organizations; Termination of Army Domestic Action Program 1 Assistance Itcms ...................................... .; ......................... mer Law Notes (National Consumer's Week; Telekarkcting Fraud Continues; ' Montgomery Ward's Advertising Practiccs Modified; Social Security Cards Sold; A Cure for Cancer, AIDS, and Other Diseases; YehiCIe LcssorS and Lessees May Not Be Protected by State Lemon Laws; Your B.A. is B.A.D. for Your Credit Rating); Tax Note Qrial Court Lacks Authority to Order Parent to vaive Child'Depenhcy Exemption); Professional Responsibility Note (JAG CMicer Justified in Making Disclosure of Sexual Abuse by Client's Husband); Absentee Voting; Family Law Notes (Adoption Reimbursement; Fonner Spouses' Health Care) CrlminalLawDidslonNote ..ip.t..* ................: I..............i,..i... .. Crimfnal Law Division, Ofice of heJudge Advocat Search and Sehrc-SituationsWhere the Fourth Amendment Does Not Apply: A'Ouide for . I Y l Commanders and Law Enforcement Personnel ..................................................... 57 Major Gary J. Holland C!Iahu Report.. .................... ................................................. 61 Unfted States Amy Claims servfce Y ,I . 1987 Carrier Warehouse, Medical Care, and Property Damage Rccovery Report; Personnel Claims Note Priority of Article 139 Claims); Rccovery Notes (MTMC Codes of Service; Field Recovery Personnel); Management Note (Let LJs-BearFrom You) Guard and Reserve Maim Items .................... .?. .... $. ...................................... 63 Judge Advocate Guard and Reserve Maim ment, TJAGSA ' Suggested Contents for Reserve Component Unit Libraries Automation Note .......................... ' Automation Management Ofice, OTJAG CLENews............................................................. :... .... ,. E . 1 ' ..... ...... System of Citation (14th ed. 1986) Uniform System of Milltory Ci­ The Army Lowyer is published monthly by The Judge Advocate Gpm­ tation (TJAGSA, .@t. 1984). Manuscripts will be returned only upon spe­ al's School for the official useof h y la~ersin the ptifdrmance of their­ ci6c request. No compensation can"bepaid for articles. legal responsibilities. The opinions expressed by the authors in the articles. The Army Lawyer Brticles an indexed in the Idex to Legal Periodicals, however, do not necessarily dwtthe yigw of The Jpdgc Advocate wer­ fie Current Low Indq the apwrces Index, and the Index to U.S. al or the Department of thc,Army.Masculine or feminine pronouns ap­ Gouerment periodicals pcariug in this pamphlet refer to both genders unless the context indicates Individual .paid subscripti available through the Superintendent another Use. of Documents, U.S. Govmunent Prhtiug CXice, Washington, D.C. 20402. The Army Luwyer welcomes articla on topics of intmst to military law­ Issues may be cited as The Army Lawyer, [date]. at [page number]. yen. Articles should be typed doubled spaced and submitted to: Editor, Sccond-classpostage paid at Charlottcsville, VA and additional m&g .- The Army Lowyer, The Judge Advocate General's School. U.S. Army, offices. POSTMASTER: Send address changes to The Judge Advocate Charlottesville, Virginia 22903-1781. Footnotes, if included, should be General's School. U.S. Army, Attn: JAGS-DDL, Charlottesville, VA typed doubles@ on a separate sheet. Articles should follow A Uniform 22903-1781. , I * . ., The Trial of Major ational Disgrace* . ,‘ ‘: ’ Captain Glen W.LaForce , th Graduattt’Course, The Judge Advocate General’s School -* . j .I I P’ * I Introducdon practice of medicine. He married a *idow there in 1854, adoptingzher two young daughters. From.that union one At.exactly 10:32 ithe trap was sprung. The faU did am. more daughter born and moved with his wife and not break neck the hangman’s knot was intended was Wirz his as to thr& daughters to Louisiana several .yearslater. P do and Henry -Wirz‘s legs kicked and writhed within their. bonds as he slowly strangled to death. The *yardof the Old When the war broke out in 1861, Wirz gave up his medi­ Capitol Prison was crowded with onlookers who gladly cal practice e to ehlist in Company A, Fourth Battalion, braved the slight ohill of the November .morning to watch Louisiana V~luntecrs.~)Hewas given a battlefield commis­ Wirz go to his death. The 250 spectator tickets the govern­ sion for brhvery. in the Battle of ‘Seven Pines near ment had issued were quickly snatched up; others watched Riohmond, Virginia, in the spring of 1862,O but he was also the event from perches!on ,nearby rooftops and in trees badly wounded. A rSe ball shattered his right arm; he nev­ overlooking the walls. Four companies of +UnitedStates er regained the full use offit, After being treated and soldiers stood guard and,,as he was led up the scaffold, they released by the military hospital in Richmond, Wirz, now a began chanting in unison,. “Wirz-remember-Anderson­ captain, was assigned to duty at Libby Prison in,Richmond ville.” When the major commanding the execution,detail working for General’John H. Winder, Sbperintendent of told Wirz,:‘Ihave my orders,”just More he put the black ConfederateMilitary Prisons.s:General Wirlder sent Wirz to ’ head over Wirz’s head, Major Wirz spoke his last words, “I inspect ,Confedeiate prisons in July ,of 1662 and then to know what orders are &jor, and I am being hanged for command the Confederrlit6 Drison at hscaloosa. obeying them.’’ I .* The mood of the crowd as they wandered away from the L. Because of his nationality and education%(hecould speak scene of the execution was one of satisfaction. For aixty­ three languages fiuently),*Captain Wiwas summoned to three days the trial of Confederate Major He+ Wirz had Richmond m the summer of 1863 and sent on a secret mis­ been front page news. ?e horrors of Andersonville were sion. s President Jefferson IDavis made Captain Wirz u recounted in story ‘after stdi-y. er’s Weekly ,obtainedL Special Minister plenipotentiary and sent him to Europe to photographs of some of tpe wo s bf the prison iak­ carry secret dispatches to the Confederate Commissioners, en just after their release and published them on its front Mister Mason in England and Mister Slidell in France. ‘0 I page. The Union was The‘public clamor for re­ ohtraged. cap& Wirn returnect‘frOm ~uropein ~muaryof venge had grown daily and ‘the target of the public’s lib p and reported back to Richmond, where he again worked vengeance was the commaxider of the Andersonville prison, for that “fiend incarnate,” General Winder in the piison departmeqt.
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