Court-Martial Trial Practice Blog — Published by International Military Lawyer

An interesting take on IAC claims on appeal

November 17, 2019 | The Law Office of Philip D. Cave

Eve Brensike Primus, Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms of Constitutional Ineffectiveness. 72 STANDFORD L. REV. x (2020).

For years, experts have blamed Strickland v. Washington’s lax standard for assessing trial attorney effectiveness for many of the criminal justice system’s problems. But the conventional understanding of Strickland as a problem for ineffectiveness claims gives Strickland too much prominence, because it treats Strickland as the test for all such claims. That is a mistake. Properly understood, the Supreme Court has recognized four different constitutional forms of trial attorney ineffectiveness, and Strickland’s two-pronged test applies to only one of the four. If litigants and courts would notice the complexity and relegate Strickland to its proper place, it would pave the way for meritorious ineffectiveness claims of the other three kinds. This Article disaggregates strands of Sixth Amendment doctrine that others have jumbled together so as to enable courts and litigants to confine Strickland to its proper domain and use more appropriate analyses elsewhere.

The Article also explains why additional disaggregation is necessary within the category of cases where Strickland rightly applies. Implicitly, the Supreme Court has created not one but three tests for assessing deficient performance within that domain, and it has indicated a willingness to soften the outcome-determinative prejudice prong as well. Failure to recognize these different forms of Strickland ineffectiveness has made the test seem much harder for defendants to satisfy than needs to be true. Recognizing these complexities, and applying the right test in the right case, is necessary if individual defendants are to be treated fairly and systemic constitutional problems in the provision of indigent defense services are to be addressed.

Mostly predictable

November 16, 2019 | The Law Office of Philip D. Cave

Anyone raising a UCI motion must be familiar with the Third Army cases and those that follow.

United States v. Thomas, 22 MJ 388 (C.M.A. 1986), cert. denied, 479 U.S. 1085 (1987); see also United States v. Levite, 25 MJ 334 (C.M.A. 1987).

Checkout United States v. Newbold, 45 M.J. 109 (C.A.A.F. 1996).

Briggs and Collins meet the Supremes

November 15, 2019 | The Law Office of Philip D. Cave

Military music will now be played before the U.S. Supreme Court.

Grants in Briggs and Collins.

Right to silence and the presumption of guilt

November 12, 2019 | The Law Office of Philip D. Cave

A British article worth reading because it has application here. Akorede Omotayo, The Right to Silence – or the presumption of Guilt

The right to silence is thought by many Judges and academics to be a constitutional right; which preserves Viscount Sankey’s presumption of innocence in Woolmington . For this reason, the legislative changes to a defendant’s right to silence, brought about by sections 34-38 of the Criminal Justice and Public Order Act 1984, represented one of the most controversial reforms of English criminal law in the last century.

Prior to the CJPOA, no evidential significance could be attached to an accused’s exercise of the right to silent, save when the accused and the victim were on even terms. However, the provisions in the CJPOA, particularly ss 34-35 have sought to alter this principle to the extent that the question that this article grapples with, is whether the right to silence, despite the changes, is still useful in protecting an accused’s supposed ‘constitutional right’ of innocence, until proven guilty.

November 7, 2019 | The Law Office of Philip D. Cave

United States v. Scott., ordering a Dubay hearing. I could not find a subsequent opinion on the ACCA website, which could mean the Dubay hearing produced nothing noteworthy and the court proceeded to affirm the findings and sentence.

CAAF has granted the following issue:

No. 19-0365/AR. U.S. v. Jason A. Scott. CCA 20170242. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

Searching lawyers

November 5, 2019 | The Law Office of Philip D. Cave

We have had a number of military cases of the years involving searches of lawyer “files” or other materials.

Here is an interesting opinion from the Fourth Circuit about “taint teams.” The Fourth is not generally known as a defense friendly court.

4th Circuit Court of Appeals Opinion 31 October 2019

Searching car computers

November 5, 2019 | The Law Office of Philip D. Cave

I’ve had several cases of serious and fatal car wrecks. In the process the investigators have “searched” the car’s onboard computer. There’s is quite a bit of information than can be retrieved to evaluate such things as speed, acceleration, and braking, that can aid in a prosecution. So, here is a new decision in JDSupra, from the Georgia Supreme Court, of interest.

The Georgia Supreme Court ruled that the retrieval of electronic automobile data from an electronic data recording device (e.g., airbag control modules) without a warrant at the scene of a fatal collision was a search and seizure that implicates the Fourth Amendment, regardless of any reasonable expectations of privacy. (Mobley v. State, No. S18G1546 (Ga. Oct. 21, 2019)). The Court went on to hold that such retrieval of data was an unreasonable search and seizure forbidden by the Fourth Amendment, and that because the State failed to identify any recognized exception to the warrant requirement applicable to the facts, the trial court should have granted the motion to suppress. As such, the judgment of the Court of Appeals affirming the conviction of the defendant for vehicular homicide was reversed.

Forensic science?

October 21, 2019 | The Law Office of Philip D. Cave

Kate Judson knows too well that science and criminal justice can often be at odds.

After working as a public defender in New Mexico, the attorney spent seven years with the Innocence Network consulting on child abuse cases involving shaken baby syndrome. For years, the diagnosis had been used to support allegations of abuse, but Judson debunked those allegations with research indicating those diagnoses are often incorrect.

Now, Judson is the executive director of the Center for Integrity in Forensic Sciences, a new nonprofit co-founded by former Wisconsin Innocence Project director Keith Findley and the lawyers Dean Strang and Jerome Buting, well-known for their defense of Steven Avery in the Netflix docuseries “Making a Murderer.” Judson now educates lawyers, courts and the public on the ways forensic science can be less than scientific — from the flimsy foundations of bite-mark science, to the inconsistencies and error rates of fingerprint analysis and hair comparisons.

Prosecutorial discretion–WTR

October 6, 2019 | The Law Office of Philip D. Cave

American Prosecutors’ Powers and Obligations in the Era of Plea Bargaining. Darryl K. Brown [University of Virginia School of Law].

I. Introduction

American prosecutors are generally understood to have a lot of power, and that power is often the subject of criticism. But whether American prosecutors’ power is problematic depends on the structure and operation of other components of the criminal justice system the code defining substantive offenses, the capacity and competency of police and investigative agencies, the law of sentencing, the typical mode of adjudication (trials or pleas), prison capacity, and funding levels for enforcement officials and courts.Prosecutors are empowered by some of these other actors and institutions, and they are constrained by others. Positive law gives prosecutors considerable power, especially by granting broad charging discretion, but it also limits that power in a couple of significant respects. Moreover, the mix of prosecutors’ powers, and potential for abuse of power,varies across American jurisdictions. Federal prosecutors are limited in important ways that state prosecutors are not, especially as to plea bargaining. Likewise, state prosecutors face constraints that their federal counterparts do not, particularly as to charging discretion. Whether prosecutor power is problematic depends on other components of the criminal justice system in which that power is exercised. In turn, the flaws of American criminal justice, in turn, arise as much from institutional arrangements that are ill-suited for particular prosecutorial powers as they do from those powers per se.

Striking testimony–ah–RCM 914

October 5, 2019 | The Law Office of Philip D. Cave

On Wednesday the CAAF granted:

No. 19-0411/AR. U.S. v. Norman L. Clark, Sr. CCA 20170023. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. DID THE MILITARY JUDGE ERR IN APPLYING R.C.M. 914?