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Capt. Robert Semrau Charged With Murder in Afghanistan

Agreed that I don't understand the strategy either, but one must assume his defence lawyer knows two things more than us:

1.  The Law; and

2.  This case.

But yes, it's difficult to win a debate or an argument if you just sit there and let the other guy make all the points (right or wrong).

Perhaps he feels like he has an iron clad closing statement that will discount all of the prosecution's points (?).
 
IMHO, other than the defense picking apart witnesses and statements to suggest that they are not credible or false, there isn't really a "defense" to be given in this case. It's simply whether or not the prosecution's evidence is sufficient enough to prove beyond a reasonable doubt that the murder occurred, since the defendant's moral judgement etc, are irrelevant.

Can the prosecution prove that Capt Semrau shot an already dying, but living person, and killed him?

To me it all comes down to the prosecution proving that the victim was still alive when he was shot, and that Semrau's gun shots were what killed him. Given that he was "98%" dead and all, I don't think the defense needs to say a whole lot. The evidence that the defense would bring up has already been brought up. That evidence is that the man was already dying or already dead. The fact that there is an "already dead" brings with it a very reasonable doubt IMO. So does the fact that he was "already dying," but to me that's not the last nail.

ballz said:
With the burden of proof being on the prosecution, the defence doesn't even have to put forth a case.

Journeyman said:
:brickwall:

Picturing you as an Assisting Officer (maybe...someday) -- and your subordinate getting the death sentence for a Sec. 129

Well apparently I'm not the only one that thinks so :P
 
I have watched enough court and read enough court reporting to know that speculating on the evidence based on what you've read in the papers is a good way to misunderstand the real facts and look like an ass. Still, this is a fascinating (although clearly tragic) case because of the lack of a body and the apparent lack of any medical evidence regarding death.

The wounded Taliban is described by the interpreter as alive because he was "moving" "shortly" before Semrau is alleged to have fired the two rounds. The Afghan army officer testified he was unsure if the insurgent was alive or dead before Semrau is alleged to have fired, and in any case, he appeared to have been perhaps "minutes" away from death.

One of the essential elements required to convict someone of murder is proof that he caused the death of another human being. His act does not need to be the sole contributing cause, or even the primary contributing cause. It merely needs to be a "significant" contributing cause of the death. On the facts as I understand them, if the insurgent was alive, Semrau's shots were certainly a significant contributing cause of the death. The shots may have only hastened death by a few minutes (or even seconds), but they were nonetheless a significant cause of death.

Still, one cannot murder someone who is already dead. A person can have the mental state necessary to commit murder (intent to cause death, or intent to cause bodily harm one knows is likely to cause death while reckless about whether death will ensue), but if they do not commit the guilty act (a voluntary unlawful act that is a significant contributing cause to the death of another person), they are not guilty of murder. The Crown must prove the guilty act beyond a reasonable doubt. So regardless of whether the insurgent was "probably" or "likely" alive at the time the shots were fired, unless the jury is convinced beyond a reasonable doubt that the insurgent actually was alive, Semrau is not guilty of murder. Given the severe injuries described in the newspapers and at least one witness's uncertainty, I am not sure the Crown has proven its case on this point. On the other hand, if the evidence of the interpreter about movement shortly before the shots is believed, perhaps the Crown has proven its case. The exact evidence, and the credibility of the interpreter, becomes key.

To be guilty of attempted murder, Semrau must have committed an act that went beyond mere preparation to commit the offence (the guilty act), and Semrau must have intended to kill the dying man (the guilty state of mind). The dying man must also NOT have actually died from anything Semrau did. This would be the case if he died of his injures before Semrau fired the shots, with Semrau mistakenly believing he was still alive.

Having said all this, I have no idea what the witnesses actually said, and I'm clearly armchair lawyering, so take this for what it is worth. But if the jury returns a verdict of not guilty on the charge of murder but guilty on attempted murder, I think I can see a path to their conclusion.

Attempted murder carries no mandatory minimum penalty. In theory, Semrau could receive a suspended sentence (with a fine or a period of probation). Attempted murder carries a maximum penalty of life in prison. He would most likely be eligible for parole after seven years if he received a life sentence.  Second degree murder carries an automatic penalty of life in prison, with parole eligibility set by the sentencing judge at between ten and twenty-five years.

As for why you don't call evidence... well, here, Semrau would no doubt be cross-examined on why he apparently believed the insurgent was alive (otherwise why shoot him?). If Semrau's evidence was that he saw the insurgent still moving, this would not be very helpful to his case on the murder vs. attempted murder issue, would it? (Recall he is both a Christian and a soldier. His religious and moral obligations categorically rule out lying under oath, and taking the stand if you're going to admit you're guilty is not a great strategy. Insisting that the Crown prove its case without your evidence, on the other hand, is a perfectly legitimate and moral course of action.) As for other witnesses, probably everyone with information relevant to the case had already been called by the Crown.
 
bjr said:
I have watched enough court and read enough court reporting to know that speculating on the evidence based on what you've read in the papers is a good way to misunderstand the real facts and look like an ***.

Then you should also understand how the remainder of your post is speculation
 
BJR,

Do not forget that we're not talking about a civilian court here.  If it were, it probably would have been thrown out in the opening seconds because of so many precedents on the gaping holes.

None of that matters in a military court martial.  Dismiss the mindset of the legal movies "beyond a reasonable doubt..." fallacy, too.  That is why he has charges stacked on him and not just murder; he doesn't have to be found guilty of murder to still take a hit.
 
Be that as it may a member has the right to appeal the CM to the Federal Courts, and be reviewed by Judges with years of non-uniform judicial experience.

Look at the statistic of cases thrown out, certainly does not speak well for competance of the rulings from the CF legal system.
 
Petamocto said:
Dismiss the mindset of the legal movies "beyond a reasonable doubt..." fallacy, too.
You need some presiding officer training.  Even in a summary trial, guilt must be proven beyond a reasonable doubt.
 
MCG said:
You need some presiding officer training.  Even in a summary trial, guilt must be proven beyond a reasonable doubt.

I have taken part in dozens, and I'm actually quite the Matlock as an Assisting Officer.  You may be quoting the letter of the law, but the magic of the 129 is that it is all-encompassing.  Even with an ND for example, there could be all sorts of things that it happened other than the weapon malfunctioning that were contributing factors, but if one person is holding the weapon that's enough to make them responsible for it.

What I meant in this specific case is that they don't have to find him guilty for murder to still hammer him with the other charges.  They don't need a body, etc...all they have to do is believe a few witnesses to say he did something unethical and un-officer-like.
 
I disagree, if the panel only believe a few witnesses then the other witnesses would present "reasonable doubt". 

The essential elements of the offence under section 129(2) NDA are:
a. the identity of the accused;
b. the date and place;
c. the conduct alleged in the particular of the charge really occurred; and
d. the prejudice to good order and discipline.

In order to prove the prejudice to good order and discipline under section 129(2) NDA, the prosecution has to adduce evidence:
a. on the nature and the existence of the regulation;
b. on the fact that each accused knew or ought to have known the
standard of conduct required; and
c. on the fact that the conduct of the accused amounted to a contravention
of the regulation, order or instruction published for the general
information and guidance of the Canadian Forces or any part thereof.

The Assisting Officer does not play a "Matlock" role, the last thing I want in Summary Trial over which I preside is a would-be barrack room lawyer.  Perhaps you should review the Assisting Officer's handbook before your next play date with justice
 
Simian Turner said:
...The Assisting Officer does not play a "Matlock" role...

[Sigh].  Never mind.  Thank you for clarifying that for me, because I was wondering why I never got anywhere screaming "Did you or did you not order the code red" at the CO.
 
This morning's Winnipeg Sun tells me this case has gone the panel.

This case should cause us all to pause and reflect on what actions we would take if confronted with a similar situation.
 
Petamocto said:
I have taken part in dozens, and I'm actually quite the Matlock as an Assisting Officer.  You may be quoting the letter of the law, but the magic of the 129 is that it is all-encompassing. 
Sect 129 NDA may be very broad in its scope.  That does not change the fact that your previous statement was completely wrong:
Petamocto said:
Dismiss the mindset of the legal movies "beyond a reasonable doubt..." fallacy, too. 
To be convicted of 129, the evidence must show beyond a reasonable doubt that the member's act or conduct was predjudicial to good order and discipline.

... of course, we all know that Capt Semrau was not charged with 129 (not even in the alternate), so this is all just academic. 
 
MCG said:
...To be convicted of 129, the evidence must show beyond a reasonable doubt that the member's act or conduct was predjudicial to good order and discipline...

But do you realize how vague that is?  By the letter of the law, all someone has to do is exhale and turn their eyes a certain way and someone can say they are not of positive conduct in terms of good order and discipline.

I have seen 129 applied to pretty much everything under the sun (granted, usually NDs) and I've yet to see someone "get off on a technicality" the way people always do in civilian court.

In fact, the perception is that it will almost always be better off for the accused to simply agree to the findings and take their slap on the wrist.  That's what I was joking about earlier with the "Matlock" comment, because nobody wants to see that.
 
Petamocto said:
But do you realize how vague that is?  By the letter of the law, all someone has to do is exhale and turn their eyes a certain way and someone can say they are not of positive conduct in terms of good order and discipline.
It is not that simple.  You will learn that when you get to the point of being a charge layer or sitting on the other side of the table.

Petamocto said:
I have seen 129 applied to pretty much everything under the sun (granted, usually NDs) and I've yet to see someone "get off on a technicality" ...
I have never seen anyone "get off on a technicality" either.  I have seen not guilty findings where the evidence did not support the charge beyond a reasonable doubt (even in a few cases of NDs). 

I find it interesting that I've called you out on something and rather than accept your error, you are are fighting other arguments on the periphery.  Is it your hope others will not notice you were completely wrong here:
Petamocto said:
Dismiss the mindset of the legal movies "beyond a reasonable doubt..." fallacy...
 
MCG said:
I find it interesting that I've called you out on something and rather than accept your error, you are are fighting other arguments on the periphery.  Is it your hope others will not notice you were completely wrong here:

Modus operandi (plural modi operandi) is a Latin phrase, approximately translated as "method of operating".[1] The term is used to describe someone's habits or manner of working, their method of operating or functioning.
 
MCG said:
....I find it interesting that I've called you out on something and rather than accept your error...

I find it interesting that you would use the words "I called you out..." as if this were somehow an improv rap showdown on the movie 8 Mile.

I have already granted you several posts ago that by the letter of the law you are correct.  If you missed that then I'm sorry, but if you need to see it again:  You are correct on that part.

The technicality part is what I am referring to though, in terms of the difference in the way we do business.  If I worded that incorrectly then I apologize for it.  But I genuinely feel like ithe charge does not need to be "iron clad" / "nailed shut" like it does on the other side of the street.

What I mean is that on civie street, you would have to prove that someone was on step 1, 2, 3, 4, and 5.  Where as from what I have seen in our world, if a soldier was seen on step 1 and 2 but is now on 5, it is generally understood that he must have come through steps 3 and 4.  Understood that metaphor is basic but I don't want to quote exact cases here.

Quote: "Modus operandi (plural modi operandi) is a Latin phrase, approximately translated as "method of operating".[1] The term is used to describe someone's habits or manner of working, their method of operating or functioning."

RecceGuy,

That's pretty funny, because I could dig up 10+ examples of my previous posts where I have admitted I was wrong and apologized.  I wonder if you could do the same.
 
Petamocto said:
I find it interesting that you would use the words "I called you out..." as if this were somehow an improv rap showdown on the movie 8 Mile.

I have already granted you several posts ago that by the letter of the law you are correct.  If you missed that then I'm sorry, but if you need to see it again:  You are correct on that part.

The technicality part is what I am referring to though, in terms of the difference in the way we do business.  If I worded that incorrectly then I apologize for it.  But I genuinely feel like ithe charge does not need to be "iron clad" / "nailed shut" like it does on the other side of the street.

What I mean is that on civie street, you would have to prove that someone was on step 1, 2, 3, 4, and 5.  Where as from what I have seen in our world, if a soldier was seen on step 1 and 2 but is now on 5, it is generally understood that he must have come through steps 3 and 4.  Understood that metaphor is basic but I don't want to quote exact cases here.

I know its been asked, infered, etc. You also may have answered it, but, if so,  I missed it.

However, I have to ask outright to get an answer.

Have you ever taken the Presiding Officer Certification Training?
 
That you cannot discuss this in proper terms is going to make this discussion near impossible.  I suspect you are suggesting that summary trials are allowed to give greater weight to circumstantial evidence (evidence where requires one to infer something from it).  You should be aware (especially as a good assisting officer) that a ST does not follow the same rules of evidence as a CM.

You might want to be careful, whatever the conclusion you've come to, that your statements really are accurate of a CM as it now appears you are applying conclusions from ST observations to CM procedings without actually understanding the law - and we are talking about law so "to the letter" is the way it is.
 
All,

Understood from the previous comments that you'd rather I not continue on this thread so I will accept your advice.

Cheers.
 
Petamocto said:
All,

Understood from the previous comments that you'd rather I not continue on this thread so I will accept your advice.

Cheers.

How about answering my question first?
 
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