27 July 2007

Norbert MacLean

Norbert B. MACLEAN III, former Cryptologic Technician (Administrative) Seaman (E-3), U.S. Navy, is angry. In October 1992, he pled guilty at a general court-martial to 12 specifications of writing bad checks, in violation of Article 123a, UCMJ. The military judge sentenced him to a DD, 40 months confinement, total forfeitures, and reduction to E-1. In accordance with the PTA, the convening authority approved the sentence, but suspended confinement in excess of the 118 days time he had served.

After considering several assignments of error, including unlawful command influence, the NMCMR affirmed in an unpublished opinion in June 1994. He did not petition the CMA for review, and he was discharged from the service in August 1994.

On at least 2 occasions, in May 2002 and June 2003, he petitioned the NMCCA for extraordinary relief in the form of a writ of coram nobis. The basis for the first petition was that the general court-martial convening authority that brought him to trial was without authority to do so because he was not assigned to the command of the GCMCA. The NMCCA denied the petition in August 2002. MacLean petitioned CAAF for review, but the writ appeal was denied. United States v. MacLean, 57 M.J. 469 (C.A.A.F. 2002) (summary disposition).

The second petition alleged 6 issues, including that the first decision was tainted because one of the judges on the panel had served as the CO and immediate supervisor of the senior trial counsel and senior defense counsel in the petitioner's court-martial, and there was evidence of actual or apparent vindictive prosecution and unlawful command influence.

The NMCCA assumed, without deciding, that the former supervisor of the trial and defense counsel was disqualified and considered all the issues raised by MacLean in both petitions. The NMCCA denied the writ. MacLean's appeal to CAAF was denied. United States v. MacLean, 62 M.J. 230; (C.A.A.F. 2005).

Meanwhile, in 2003, MacLean made a formal complaint to the Department of Defense against the prosecutor in his court-martial. The DoD investigated. In 2004, MacLean requested copies of the investigations from the Navy and DoD. The Navy declined, but the DoD did give him some documents. After exhausting his administrative remedies, he filed suit in federal court. The district court dismissed in a summary judgment. MacLean appealed. The 9th Circuit reviewed the case and affirmed. MacLean v. Department of Defense, No. 05-55883 (9th Cir. Jul. 11, 2007) (unpublished).

Just hope you are never assigned a case with an accused like this. This case will never end.


3 comments:

Anonymous said...

There is a distinct difference between being angry and seeking justice. Your post failed to mention that Petty Officer (not Seaman) MacLean filed a meritorious UCMJ article 138 complaint against the very officer that appointed the UCMJ article 32 officer and made the recommendation for general court-martial. Your post failed to mention the dozen illegal military subpoenas that were issues as "general court-martial" subpoenas commanding civilians to turn over private records and/or testify at a UCMJ article 32 even before a UCMJ article 32 officer was appointed. Your post also fails to mention that as a proximate result of MacLean seeking justice, the Equal Justice for Our Military Act of 2007 was introduced. See San Diego Union Tribune article: http://www.signonsandiego.com/uniontrib/20070726/news_7m26suit.html Lastly, your post fails to mention missing evidence to include pay records of thousands of dollars of pay that was returned to DFAS -- not deposited into MacLean's account because routing numbers were mysteriously off by several digits during the bad check charges --- the pay records were found more than a decade later burried in Air Force pay records in Denver, CO. Aren't Navy pay records held in Clevelend, OH? Kudos to CTA3(AW) Norbert Basil MacLean III for putting up a vigorous legal battle.

Stephen Bell said...

I've known Norbert for more than a decade. Besides the anonymous comment made, you nor the commenter failed to include a change that was made as a direct result of Norbert's case to the Manual for Courts-Martial. In April 2007, the President signed an Executive Order amending the Manual for Courts-Martial, Rules for Courts-Martial. The below excerpt is from an email that DoD OGC attorney Bob Reed sent to the House Armed Services Committee counsel in May of this year:

"Bottom Line: The package the President reviewed in April 2007 had the subpoena provision in it:

The Discussion accompanying R.C.M. 405(g)(2)(B) is amended by inserting the following sentence at the end of the second paragraph:

'Except for use in support of the deposition of a witness under Article 49, UCMJ, and ordered pursuant to R.C.M. 702(b), the investigating officer and any government representative to an Article 32, UCMJ, proceeding does not possess authority to issue a subpoena to compel against his or her will a civilian witness to appear and provide testimony or documents.'"

So not only did Norbert's case bring forth the Equal Justice for Our Military Act; it also amended a provision of the RCM in the MCM.

While there may be some truth to the fact that Norbert may be angry at the way he was treated within the military justice system. His actions have shown that he had tried to use the injustices he experienced to improve the military justice system. It seems to me that his anger has been turned into something very positive.

Stephen Bell
San Diego, California

Jason Grover said...

I admit that I am not that familiar with the Maclean case. But the first comment praised Maclean for putting up a vigorous legal battle. But didn't he plead guilty? And isn't all the stuff about the Article 32 hearing the exact sort of thing that is waived by a guilty plea?