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Headquarters, Department of the Army Headquarters, Department of the Army Department of the Army Pamphlet 27-50-413 October 2007 Articles Tending the Garden: A Post-Trial Primer for Chiefs of Criminal Law Lieutenant Colonel Timothy C. MacDonnell Responding to National Disasters and Emergencies: A Contract and Fiscal Law Primer Major Christopher B. Walters, USMC Cry “Humanitarian Assistance” and Let Slip the Dogs of War Major Sharad A. Samy Notes from the Field The Posse Comitatuts Act: Does It Impact the Department of Defense during Consequence Management Operations? Lieutenant Colonel Mary J. Bradley, Lieutenant Colonel Stephanie Stephens, Mr. Michael Shaw Cross Examination by the Numbers Lieutenant Colonel Bradley J. Huestis USALSA Report U.S. Army Legal Services Agency Trial Judiciary Note A View from the Bench: Instructions: A Primer for Counsel Colonel R. Peter Masterton Book Review CLE News Current Materials of Interest Editor, Captain Alison M. Tulud Assistant Editor, Captain Ann B. Ching Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly interest to military lawyers. Articles should be submitted via electronic by The Judge Advocate General’s Legal Center and School, Charlottesville, mail to [email protected] or on 3 1/2” diskettes to: Editor, Virginia, for the official use of Army lawyers in the performance of their The Army Lawyer, The Judge Advocate General’s Legal Center and legal responsibilities. Individual paid subscriptions to The Army Lawyer are School, U.S. Army, 600 Massie Road, ATTN: ALCS-ADA-P, available for $45.00 each ($63.00 foreign) per year, periodical postage paid at Charlottesville, Virginia 22903-1781. Articles should follow The Charlottesville, Virginia, and additional mailing offices (see subscription form Bluebook, A Uniform System of Citation (18th ed. 2005) and Military on the inside back cover). POSTMASTER: Send any address changes to The Citation (TJAGLCS, 12th ed. 2007). Manuscripts will be returned on Judge Advocate General’s Legal Center and School, 600 Massie Road, specific request. No compensation can be paid for articles. ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. The opinions expressed by the authors in the articles do not necessarily reflect the view of The Army Lawyer articles are indexed in the Index to Legal Periodicals, The Judge Advocate General or the Department of the Army. Masculine or the Current Law Index, the Legal Resources Index, and the Index to U.S. feminine pronouns appearing in this pamphlet refer to both genders unless the Government Periodicals. The Army Lawyer is also available in the Judge context indicates another use. Advocate General’s Corps electronic reference library and can be accessed on the World Wide Web by registered users at The Editor and Assistant Editor thank the Adjunct Editors for their http://www.jagcnet.army.mil/ArmyLawyer. invaluable assistance. The Board of Adjunct Editors consists of highly qualified Reserve officers selected for their demonstrated academic Address changes for official channels distribution: Provide changes to excellence and legal research and writing skills. Prospective candidates the Editor, The Army Lawyer, The Judge Advocate General’s Legal Center may send Microsoft Word versions of their resumes, detailing relevant and School, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, experience, to the Technical Editor at [email protected] Virginia 22903-1781, telephone 1-800-552-3978 (press 1 and extension 3396) or electronic mail to [email protected]. The Editorial Board of the Military Law Review includes the Chair, Administrative and Civil Law Department; and the Director, Professional Issues may be cited as ARMY LAW., [date], at [page number]. Writing Program. The Editorial Board evaluates all material submitted for publication, the decisions of which are subject to final approval by the Dean, The Judge Advocate General’s School, U.S. Army. The Army Lawyer welcomes articles from all military and civilian authors on topics of Articles Tending the Garden: A Post-Trial Primer for Chiefs of Criminal Law Lieutenant Colonel Timothy C. MacDonnell..................................................................................................................... 1 Responding to National Disasters and Emergencies: A Contract and Fiscal Law Primer Major Christopher B. Walters .......................................................................................................................................... 35 Cry “Humanitarian Assistance” and Let Slip the Dogs of War Major Sharad A. Samy...................................................................................................................................................... 52 Notes from the Field The Posse Comitatus Act: Does It Impact the Department of Defense during Consequence Management Operations? Lieutenant Colonel Mary J. Bradley, Lieutenant Colonel Stephanie Stephens, Mr. Michael Shaw................................. 68 Cross Examination by the Numbers Lieutenant Colonel Bradley J. Huestis ............................................................................................................................. 76 USALSA Report U.S. Army Legal Services Agency Trial Judiciary Notes A View from the Bench: Instructions: A Primer for Counsel Colonel R. Peter Masterton .............................................................................................................................................. 85 Book Review Charlie Wilson’s War: The Extraordinary Story of the Largest Covert Operation in History Reviewed by Major Eric D. Magnell ............................................................................................................................... 94 CLE News .......................................................................................................................................................................... 101 Current Materials of Interest .................................................................................................................................... 111 Individual Paid Subscriptions to The Army Lawyer.................................................................. Inside Back Cover OCTOBER 2007 • THE ARMY LAWYER • DA PAM 27-50-413 i Tending the Garden: A Post-Trial Primer for Chiefs of Criminal Law Lieutenant Colonel Timothy C. MacDonnell1 A wise Staff Judge Advocate (SJA) once said that “managing the post-trial process of a criminal law office is like tending a garden.” This short statement captures the essence of the successful management of the post-trial process. If the chief of criminal law and his office tend to the post-trial process daily, making sure each step is given the appropriate attention, the process will remain manageable. If, however, the post-trial process is attended to sporadically or left unattended for weeks, it will quickly become overwhelming. As a new chief of criminal law one of the most challenging tasks you will face is managing the post-trial process of your office. For most new chiefs of criminal law, the post-trial process is uncharted territory. If your only criminal law experience is as a trial counsel (TC), virtually all of the post-trial process will be new territory. Even former defense counsel (DC), who are familiar with requesting deferment of punishment, and Rules for Courts-Martial (RCM) 1105 and 1106 submissions, will find the post-trial world of a chief of criminal law much larger and more diverse than that of a DC. The task of managing an office’s post-trial process can also be challenging because it can be difficult to see its significance. The purpose of the pretrial process is obvious—to get a conviction—but after the trial is over, the objective is more elusive. Finally, the post-trial process is challenging because there is so much to it. In a run of the mill post-trial process2 the criminal law office will have to: create and organize a record of trial (ROT),3 produce eight documents,4 ensure that the ROT is reviewed by four individuals,5 serve the post-trial recommendation and addendum (if it contains new matter) on the accused and his counsel,6 receive and organize the matters submitted by defense, get the convening authority (CA) to take action,7 and mail the original ROT and two identical copies to the reviewing or appellate authority.8 The purpose of this article is to explain the post-trial process and identify some of the process’s common pitfalls and methods of avoiding those pitfalls. This article addresses the post-trial process in four parts. The first part discusses the post- trial process in general, focusing on the purpose of the process and briefly discussing all the stops along the way, including the subject of post-trial delay. The second part reviews the process from the adjournment of the trial to authentication of the record. The third part examines the process from the authentication of the ROT to the SJA addendum. The final part examines the CA action, the promulgating order, the process of placing Soldiers on excess leave, and final action. Post-Trial Processing in General and Post-Trial Delay As the chief of criminal law you are responsible for ensuring the execution of all of the necessary steps to complete the post-trial process. One error in the process can cause all subsequent actions taken to have to be repeated.9 Additionally, 1 Currently assigned to the Regime Crimes Liason Office, Baghdad, Iraq. Many individuals assisted in the completion of
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