This site is for the trial practitioner (the military lawyer) of military justice, and for the information of U.S. active duty, Guard, and reserve service-members, their spouses and their families. Our goal is to focus on trial practice issues in cases arising under the UCMJ and being tried at court martial. We hasten to add that nothing on this blog should be taken as specific legal advice for a specific client.

In a legal earthquake for the military justice system, the Court Martial Appeal Court of Canada (CMAC) has split 2-1 to strike down s. 130(1)(a) of the National Defence Act (NDA) because the majority held that the provision — which deems Criminal Code offences committed in Canada by military members to be “service offences” — deprives military accused of their Charter s. 11(f) right to trial by jury.

The Sept. 19 majority decision by CMAC Justices Jocelyne Gagne and Vital Ouellette (Chief Justice Richard Bell dissented) ruled that to deprive a military accused of a trial by jury for offences punishable by more than five years in prison, and that were committed within Canada, is not justified under s. 1 of the Charter as a reasonable and demonstrably justified limit in a free and democratic society: R. v. Beaudry 2018 CMAC 4.

The Lawyers Daily (Canada).

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A retired judge in Iowa recently defended himself in a hearing of a contested order by saying, “I didn’t write this thing.” A review of Judge Edward Jacobson’s rulings found that he had failed to notify the parties in 13 cases where he had signed proposed rulings written by lawyers (presumably the lawyer involved in the litigation). Judge Jacobson said he believed it was common practice to have the lawyers in the case write the orders.

I think the judge is correct – it is common practice for the court to ask one of the attorneys to write orders at various stages of any case. The difference is that this is usually common knowledge to the parties involved in the case, and opposing counsel is consulted before submission of the proposed order, or at some stage before the order becomes final. The request for the order writing is usually done in the presence of both attorneys, so all parties are fully aware of the plan. This was not done in several of Judge Jacobson’s cases.

This practice raises a question though, should this be the practice at all? Why is it that the work emerging from a judge’s chambers is primarily drafted by a lawyer involved in the litigation? Isn’t a judge who does this just shifting her workload to the lawyer who will presumably bill the client for the time spent drafting an order? Or is it proper and more expedient for the lawyers in the case to do it themselves? They are better acquainted with the intricacies of the issues that must be addressed in any order, and would be ready to critique a judge-drafted order that missed important items anyway, which would slow down the process.

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SCOTUSBlog reminds us of some upcoming criminal law cases in the coming term.  While generally interesting, the case to watch is:

In Gamble v. U.S., the court will consider whether to overrule the “separate sovereigns” exception to the double jeopardy clause of the Fifth Amendment, which provides that “[n]o person shall … be subject for the same offence to be twice put in jeopardy of life and limb.” The common understanding of this awkwardly written clause is that a person may not be tried twice for the same offense. But despite the absolute-sounding nature of the constitutional text, the Supreme Court has ruled for well over a century that the clause allows “separate sovereigns” to each try a single defendant for what sure sounds like the “same offense.”

I have had cases of the reluctant witness, typically the spouse physical abuse cases, to United States v. English (ACCA 2018) was not a surprise in terms of the issue.  The alleged victim was refusing to cooperate in the prosecution so the prosecution tried to introduce prior statements.  The prosecution uses Mil. R. Evid. 803(5), the rule about prior recollection recorded.  In English the prosecution and the judge erred.  The prosecution needed to check three foundational boxes–but they didn’t according to the ACCA.

(1) the recorded statement contains matters of which a witness once had knowledge but now has insufficient recollection to enable the

witness to testify fully and accurately;

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We may have reached, “a fairly critical point where traditional photographic evidence just isn’t as reliable as it used to be.” This according to our most recent podcast guest, Joe Kashi. In addition to being a trial attorney in Alaska, Joe has worked in automation technology and is himself a serious photographer. Recently Joe taught a two-part webinar series, “Using and Misusing Visual Evidence, Parts 1 and 2,” moderated by ALPS Risk Manager and podcast host, Mark Bassingthwaighte. In this interview Mark and Joe delve even deeper into how technology and the accessibility of photo editing software is changing how we view photographic evidence in the courtroom.

There has been some similar thought regarding emails and texts.  There are a number of free easy apps to put on a cell phone that can allow spoofing of a email address or text.  But what about photographs, that’s the point here.  The quote comes from an interesting item:

ALPS In Brief Podcast – Episode 20: Can We Still Trust Photographic Evidence?

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Posted on September 2, 2018 by Hall on his excellent blog.

To get a search warrant for home surveillance equipment, the affidavit for the warrant has to show some inference or fact that there is, in fact, one to be found there. The mere fact they are a lot cheaper these days isn’t enough to get one. Foreman v. State, 2018 Tex. App. LEXIS 7264 (Tex. App. – Houston (14th Dist.) Aug. 31, 2018):

The parties have not cited, nor have we found, a case in which the Court of Criminal Appeals has determined under what circumstances a magistrate could reasonably infer that an electronic device exists in a particular location. This court has required specific facts to support an inference that those devices exist before we have allowed seizure or search of electronic devices pursuant to a warrant. This is demonstrated by our jurisprudence surrounding the searches of computers/cameras and cellphones.

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Posted on September 1, 2018 by Hall on his excellent blog.

The court finds that “the good faith exception to the exclusionary rule does not apply here. Contrary to the government’s assertion, this case directly fits the Supreme Court’s admonition in Leon that ‘[s]uppression … remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.’ Leon, 468 U.S at 923; see also id. at 926 (‘[S]uppression is appropriate … if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.’).” There was nothing to support probable cause except the officer’s experience. No facts, no nothing.

United States v. Roman, 2018 U.S. Dist. LEXIS 145893 (D. Mass. Aug. 28, 2018).  I wonder if there’s something about the MCIO search authorization requests to challenge?  Much of their declaration is supposition, speculation, and “experience” as they go on a fishing expedition.

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This case is before us for a fourth time. The petitioner, a former service member, seeks extraordinary relief from this court in the nature of a writ of error coram nobis or, in the alternative, in the nature of a writ of audita querela, under the All Writs Act, 28 U.S.C. § 1651(a). The petitioner avers that his appellate defense counsel were ineffective in representing him by failing to raise as error Military Rule Of Evidence (Mil. R. Evid.)413, Manual for Courts-Martial, United States (2005 ed.) issues raised at trial. Alternatively, he asserts that even if his appellate defense counsel were not ineffective and no writ of error coram nobis should issue, a writ of audita querela should issue to prevent continued enforcement of his conviction—and the resulting sex offender registration requirements—in light of the Court of Appeals for the Armed Forces’s (CAAF) decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). The petitioner claims Hills should apply retroactively to his case.

Burleson v. United States, No. 200700143, 2018 CCA LEXIS 87, at *1-2 (N-M Ct. Crim. App. Feb. 26, 2018).

Audita querela is a latin term meaning “the complaint having been heard.” A defendant can seek a rehearing of a decided matter due to the newly discovered evidence or newly existing legal defenses, through a writ of audita querela. A writ of audita querela attacks a judgment that becomes incorrect later because of circumstances that arose after the judgment was issued.

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I confess to confusion about the post-trial actions of a convening authority.  When I first began trials in 1980 the right to clemency was robust and generally, the CA could do just about anything.  I’m seeing more recent cases with an issue about what can and can’t be done by the CA.

Congress significantly changed the statutory scheme in Article 60, UCMJ, through the National Defense Authorization Act for Fiscal Year 2014. See Pub. L. No. 113–66, § 1702, 127 Stat. 954–958 (2013) (codified at 10 U.S.C. §860(c)(4)(A)). What had been authority “to modify the findings and sentence of a court-martial [a]s a matter of command prerogative involving the sole discretion of the convening authority” became limited power to make only certain modifications under a restricted set of circumstances. Article 60(c)(4)(A), UCMJ, now provides that “the convening authority . . . may not disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge.” 10 U.S.C. § 860(c)(4)(A). Congress set

forth only two narrow exceptions to these limitations[.]

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