The Army Court of Criminal Appeals has raised an interesting question and important reminder in United States v. Keen, decided 20 October 2016. The court itself specified the following issue. WHETHER THE MILITARY JUDGE ACTED AS COUNSEL OR LEGAL OFFICER AS TO ANY OFFENSE CHARGED OR IN APPELLANT’S CASE GENERALLY…
Please don’t do this. [T]he defense counsels did not respect the judge’s ruling. [I]n an astounding show of contempt, [they] tried to force the judge to reverse himself by their unilateral withdrawal from the proceedings, on the apparent pretext that they were not prepared. They did not: voir dire the…
Recently, in United States v. Marsh, No. 38688 (A.F. Ct. Crim. App, Apr. 19, 2016), the (unnamed and not me or several of my closest friends) civilian defense counsel was held in contempt for late filing of a motion. It appears this was not the first time in the case…
I was reading Unwashed Advocate today, and thought I would repeat his good advice on how best to make a motion or objection at trial. I have a couple of additional thoughts, but otherwise his is good advice. He says, and I quote extensively: However, when it comes to making…
Can a failure to file a pretrial motion equal ineffective assistance of counsel? The BLUF is yes in some cases. In some instances I have argued IAC on appeal for failing to make a meritorious motion. The NMCCA has issued an interesting opinion in United States v. Spurling, in which they…
Some years ago I represented a Soldier accused of multiple assaults and rapes of his wife, and of his girlfriends. The rapes allegedly included him choking the complaining witness during the rapes. He told me – and later the members at his court-martial – that he and his wife consensually…
Friend Christian Capece liked a post on Linked-In “The most dangerous phrase is, “we’ve always done it that way.”” That amused me because it immediately brought to mind United States v. Fosler. And Fosler came to mind so readily because I was just discussing litigating issues with some younger counsel,…
Prof. Colin Miller has an interesting post about prosecutorial discretion during the course of trial. Besides getting a conviction and an appropriate sentence, a secondary gain of the prosecutor is to have the case affirmed on appeal. Affirmance means a guilty person doesn’t walk or get a new trial. In…
Many years ago we sought to improve our counsel performance at NLSO Norfolk with developing checklists, protocols, and a PQS system. It seemed to work. Now here is an article, Darryl K. Brown, Defense Counsel, Trial Judges, and Evidence Protocols, Brown, Darryl K., Defense Counsel, Trial Judges, and Evidence Protocols,…
Here is an interesting case from the Tenth, about cross-examination of a witness about a prior judicial “finding” that the witness was not credible — United States v. Woodard. The court states this basic principle from its own jurisprudence: The Sixth Amendment guarantees the right of a defendant to “be…