Are military law enforcement investigations complete, thorough, and unbiased? It depends. The MCIO leadership and agents will tell you they are. Our experience over the years both as military defense counsel and military prosecutors is that investigations can be incomplete, with leads not followed, evidence not retrieved, and bias in…
What, if anything, can you as military defense counsel do if you suspect some shenanigans during panel member deliberations? Military Rule of Evidence 606 states the basic rule against questioning the panel members during or after the trial about what went on during deliberations. Prohibited Testimony or Other Evidence. During…
Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective, By D. Kim Rossmo and Joycelyn M. Pollock. Their study suggests that 37% of wrongful convictions result from confirmation bias. Table 1: Causal Factors (≥ 10) Causal Factor Confirmation bias 37 Tunnel vision 24 High-profile crime/media attention…
Like it or not, consistent or not consistent with long-held notions of justice, a military member accused of a sexual assault is presumed guilty. Sure command and others will say you are going to get a fair hearing and trial, but that’s not reality. Over 100 Law Professors, Others Call…
I have always argued for full and early discovery in court-martial cases. How can you defend someone when discovery is delayed or held-back. And how can you make a properly considered judgment on a PTA or not. “The Right to Evidence of Innocence Before Pleading Guilty,” on SSRN. Here is the abstract:…
Be careful of who you talk to if you are in trouble. I think it’s fair to say that CAAF has narrowed the who and when requirement for an Article 31, UCMJ, warning, as illustrated in a recent Air Force case. Thus, Article 31(b), UCMJ, warnings are required when (1)…
I, currently, ask for the following as a minimal initial discovery request. Any and all adverse or negative information contained in the personnel files of any federal or state law enforcement agent who may have worked on this case in any manner. This includes but is not limited to Any…
SCOTUSBlog reports a petition of the day is: Campanelli v. Illinois, 17-1225 Issue: Whether the Sixth Amendment right to conflict-free counsel forbids multiple attorneys in a single public defender’s office from concurrently representing non-consenting, adverse co-defendants. Keep this in mind because this is a potential problem for ALL military defense counsel offices. For…
[V]iolations of Brady are the most recurring and pervasive of all constitutional procedural violations, with disastrous consequences: innocent people are wrongfully convicted; the reputation of U.S. prosecutors suffer; and the absence of meaningful legal and ethical enforcement and accountability has a corrosive effect on the public’s perception of a justice system that…
At SimpleJustice blog (a blog worth following) there is a piece about Judge Kopf and a tweet which leads to a discussion of a prosecutors obligation to provide discovery to the defense. Let me start with some basics and two cases that prosecutors and defense lawyers know (or should know) well. In Brady…