FOR IMMEDIATE RELEASE
26 July 2005
Michael New wins a round!
Contact:
Herbert W. Titus,
Attorney
757-421-4141 forecast22@pinn.net
LTC Henry
Hamilton, Attorney
803/779-0700 law@ratchfordandhamilton.com
Daniel D. New,
Project Manager
254-796-2173 ddnew@danielnew.com
Michael New wins a round, case still
alive --
Rumsfeld's motion to dismiss is denied
(District of Columbia) - The US Court of Appeals has denied the
government's motion that would have ended a soldier's legal battle to
overturn his court-martial, and to defend his right and duty to disobey
an illegal order.
Specialist Michael New was court-martialed in 1996 for his refusal to
wear a United Nations uniform, to deploy to Macedonia under United
Nations command, and to serve under the command of a general officer from
Finland.
In a radical departure from constitutional requirements of criminal
prosecution, the District Court of D.C. had agreed with the military
courts that there was no fatal defect when the military judge in New's
court-martial refused to allow any evidence before the jury
(panel). Legally, the Jury is the "trier of fact" and not
the judge.
Upon appeal to the Court of Appeals for the Armed Forces (CAAF) in
2001, the court-martial was once more sustained, but only after a delay
of 495 days. The Supreme Court declined to hear an appeal.
Having "exhausted the military remedy," New took his case to
the US District Court, challenging the court-martial conviction.
The transcript of that hearing can be found here:
www.mikenew.com/docs/111904.pdf
At the heart of the issue is the question of whether an American soldier,
having taken an oath to support and defend the Constitution of the United
States, may be forced instead to serve under the military command of a
foreign power, specifically the United Nations. The military courts
ruled that this was a political question, outside the jurisdiction of
their courts. Thus, New was denied his day in court in order to
protect the Clinton administration from having to justify the
deployment.
In a surprising ruling, US District Court Judge Friedman conceded that
Clinton may have broken the law, but that it is the duty of Congress to
challenge the president, not a lowly soldier (www.mikenew.com/orlndsen.html). This decision continues to
astonish attorneys and Constitutional authorities when they hear about
it. As one attorney recently said, "I have always been under
the impression that the citizen possesses every right under the
Constitution that exists. Perhaps that is no longer
true."
"It is now going on ten years, since this perversion of the
Constitution began in Mike's case," says his father, Daniel New,
Project Manager of the Legal Defense. "They thought he would
go away. He was a nobody to the government, which lives by the
argument that, 'You must obey orders, no matter what.' Even though
we hung German officers who used that as a defense following World War
II, it appears now that we have come full circle and we find the Pentagon
making the same arguments that their opponents made half a century
earlier. Having forgotten our history, we are now forced to repeat
it."
According to Lead Attorney Herbert W. Titus, of Virginia, who heads up
the legal team representing Michael New and the Constitution, "We
have here a case with serious implications for every American who ever
wears a uniform. Michael New's stand is for them, and their right
to defend their country exclusively, in accordance with the American
soldiers Oath of Office."
"The heart of the issue," says legal observer Joseph Dale
Robertson, "is that New did not receive a fair trial in the
beginning, and the merits of the case have never, to this day, been
tried. Under our constitutional requirements set out in the sixth
amendment right of a jury trial, the trier of facts in a criminal case
must be by determined of a jury – not the judge. In the case of Michael
New, it was the judge – not the jury, the military panel hearing the case
- who unilaterally and wrongly determined that an essential element of
the alleged crime of failure to obey an order – was the order, alleged to
have been disobeyed, a lawful order? - was as a matter of fact a lawful
order. In short, constitutional requirements make that the exclusive
decision of the jury not the judge.
"Every judicial circuit court of appeals in the federal system -
except the District of Columbia - has ruled that in all criminal cases it
is the jury, the trier of fact, that must exclusively determine each and
every essential element of the alleged crime. Michael New was denied this
fundamental right in his original court-martial! Every circuit
court in the United States has said so with the singular exception of the
United States Circuit Court of Appeals for the District of Columbia. It
is now time for the DC circuit court of appeals to join with all other
federal circuit court of appeal in the land and hold in the Michael New
case that the constitution applies to criminal court martial trials as
well. Further, that Michael New was denied a fair trial in that he
was denied the fundamental right to have every element of the alleged
crime determined by a jury and not a judge."
And what does Michael New think of all this? "Right is right,
and wrong is wrong. They can argue until the End of Time, but I
will never serve the United Nations." New continues is
pursuing a degree in Information Management Systems in Texas.
The case is expected to be heard late this year, or early in 2006.
- 30 -
For more information:
www.mikenew.com/
Timeline:
| 10/10/1995 |
Order to
wear UN uniform disobeyed |
| 1/1996 |
US District Court refuses to hear case |
| 1/1996 |
Court-martial - Bad Conduct Discharge |
| 3/28/1998 |
Oral arguments, Army Court of Criminal Appeals |
| 4/28/1999 |
ACCA upholds court martial decision |
| 2/4/2001 |
Oral arguments, Court of Appeals of the Armed Forces |
| 6/13/2002 |
CAAF upholds, after a stall of 495 days |
| 5/8/2002 |
US District Court hears case |
| 12/24/2004 |
US District Court dismisses case |
| 7/19/2005 |
US Court of Appeals agrees to hear oral arguments |
|
|
|