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.

The U.S. Supreme Court today took up Garza v. Idaho, No. 17-1026, involving the intersection of two recurring themes: lawyer decisions v. client decisions in the conduct of a case and how to apply rules developed for trials to the context of plea-bargained cases, which most cases are now.
In the course of a criminal trial, the lawyer makes most of the decisions, but a few are reserved for the client personally.  This “rule” or assignment of duty applies in courts-martial.  Whether to appeal is a client decision.  In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Court dealt with the issue of ineffective assistance claims for a lawyer’s failure to appeal, with or without consulting the client.  If the lawyer is found to have performed deficiently, the “prejudice” question is only whether there is a reasonable probability the client would have appealed, not that he would have prevailed on appeal.

My first GCM involved eyewitness identification and a motion to suppress based on an improperly suggestive show-up when the client was arrested.  He was handcuffed in the back of the police car and the armed robbery victim was brought to the police car and asked ”is that him” or words to that effect.  Since then I’ve not had a case where there was a serious question of identification.  That said, Prof. Miller, one of my favorite evidence bloggers has this piece.

Should Courts Allow for the Admission of Pre-Trial Identifications by Witnesses Who Can’t Remember Making Them?

He first notes that misidentification contributed to 75% of exoneration cases.  Then he moves to Mil. R. Evid. 801 and how an out of court identification may not he hearsay.

From time to time  I recommend articles, cases, or books to read that may be of interest and help to practitioners.  Here are couple of plays to add to the mix, courtesy of Global Military Justice Reform blog, and I quote.

Anthony Thommasini of The New York Timeshas written this strong and quite positive review of the opera “An American Soldier,” concerning the suicide of U.S. Army Private Danny Chenand the ensuing court-martial. It’s playing in St. Louis.

Can you think of another opera that concerns military justice? Benjamin Britten‘s Billy Budd and the more obscure My Lai come to mind. There is also an Overture to The Andersonville Trial, about the notorious Confederate prison camp.

Once the MCIO gets a “confession” or DNA in a sexual assault case, it seems, they stop investigating–bad.

Whether you have DNA or not–whether you are trial counsel or defense counsel–gathering non-DNA evidence can be vital to your case.

Complaining witness says she and accused were at a bar drinking and the accused later took advantage of her because she was drunk.  OK, where are the bar receipts?  No, the MCIO is unlikely to ask and by the time the defense comes on board the register receipts may not be available.  Note, I have had several cases where the client has been saved by going to the bar with his credit card and getting the receipts.  The receipt tells you a number of things:  time paid (possibly related to time left the bar when paying the tab), (depending on the software) the number and type of drinks (huuum…four people in the party, four drinks, and just how many did the CW really drink?)  Or, how about the video from the base entry point when the CW walks or drives or is driven on base?  Is it possible the video helps show how unintoxicated the CW was or wasn’t?  CCTV?  Remember, the MCIO doesn’t usually care about this stuff.

The director of public prosecutions has pledged to apologise over failures in 47 rape and serious sexual offence cases where vital evidence was withheld from defence lawyers.

From Juliet Bremner with ITV(UK).

On Tuesday, the Crown Prosecution Service (CPS) revealed that issues with disclosure had been identified in 47 of 3,637 cases in England and Wales that were reviewed between January and mid-February.

“of late, an important shift has occurred in the views of state and lower federal courts, which have increasingly found fault with “new-generation” SORN laws, which in many respects are more expansive and onerous than those condoned by the” Supreme Court in Smith v. Doe, 538 U.S. 84 (2003) (cleaned up?).

In the federal judicial realm, the Sixth Court of Appeals in Does v. Snyder unanimously invalidated on federal ex post facto grounds Michigan’s law that, like many other amended state laws, not only requires in-person information verification and updating by registrants, but also limits where they can live and work. To the Sixth Circuit, Michigan’s SORN law was “something altogether different from and more troubling than Alaska’s circa 2000 first-generation registry law.”  Tellingly, when the State petitioned the U.S. Supreme Court for certiorari, and the Court invited the Acting U.S. Solicitor General to weigh in and brief the matter, the latter acknowledged the correctness of the decision in light of what it termed the “distinctive features” of Michigan’s law.  Whether it is accurate to say that the Michigan law varies so substantially as to make it sui generis is certainly subject to dispute,19 but the reluctance of the Court and the Solicitor General (in the Trump administration, no less) to let stand a circuit decision categorically invalidating a state SORN law, using quite denunciatory language,20 was a significant surprise.

From, Logan, Wayne A., Challenging the Punitiveness of ‘New-Generation’ SORN Laws (May 18, 2018). 21 New Criminal Law Review (2018 Forthcoming). Available at SSRN: https://ssrn.com/abstract=3180899

(cleaned up)

Yes, back in 1976 I got my Bluebook and throughout the three years of law school, it was a regular reference.  Ah, but it continues to be a daily tool–for motions, briefs, and such.  I fear one day I’ll Bluebook a conversation with a relative or friend in everyday conversation.

One of the common questions is how best to quote, be it an appellate decision or a law journal.  Jack Metzler proposes a solution,  In Cleaning Up Quotations, to be published in 18 J. APP. PRAC. & PROCESS.

Daniel Epps, Harmless Errors and Substantial Rights.  131 HARV. L. REV. 2117 (2018).

The harmless constitutional error doctrine is as baffling as it is ubiquitous. Although appellate courts rely on it to deny relief for claimed constitutional violations every day, virtually every aspect of the doctrine is subject to fundamental disagreement and confusion. Judges and commentators sharply disagree about which (and even whether) constitutional errors can be harmless, how to conduct harmless error analysis when it applies, and, most fundamentally, what harmless constitutional error even is — what source of law generates it and enables the Supreme Court to require its use by state courts. This Article offers a new theory of harmless constitutional error, one that promises to solve many of the doctrine’s longstanding mysteries.

The rule of lenity is something you should have in the toolbox regardless of being a trial or appellate counsel.

Intisar A. Rabb, The Appellate Rule of Lenity: Responding to Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals.  131 HARV. L. REV. F. 179 (2018).

Lenity’s prominence is unsurprising for a few reasons. First, as an ancient principle directing judges to construe ambiguous criminal statutes narrowly, SeeAntonin Scalia, A Matter of Interpretation 29 (Amy Gutmann ed., 1997) (“The rule of lenity is almost as old as the common law itself, so I suppose that is validated by sheer antiquity.”

Those of us who engage with discharge reviews, correction boards, and federal court on behalf of service-members are used to reading about the presumption of regularity–it’s a regular defense by the gubmint to an applicants claim.

“I was improperly discharged.”

A: “We can’t find any record of your discharge.  Because of that we consider you properly discharged, because we presume the command did it right.  No, we can’t and don’t have to explain why there is no record of this.”