Articles Posted in Trial-Craft(c)

As part of due diligence defense counsel want to know as much about a witness as possible–that’s OK and ethical.  Many of us have found helpful information on social media accounts.

The gist of Formal Opinion 466 is that, within the context of Model Rule 3.5, a lawyer may review a juror’s or potential juror’s various postings on websites and social media. But the lawyer should not send jurors or prospective jurors a request for access, either directly or indirectly, to their social media accounts because doing so would amount to a violation of the prohi-bition in Model Rule 3.5(b) against ex parte communications with jurors that are not authorized by law or court order.

While the above applies to a court-martial member, it’s likely a best practice when researching witnesses in a case.

We caution trial counsel…[as to] how difficult this area of the law can be. There are still issues to be resolved in this arena…. With precedents far from settled, only the bravest of advocacy acrobats ought to tempt fate. (They do so at their own peril, for we guarantee no safety net against reversal).

United States v. Weddle, 61 M.J. 506, 510 (C.G. Ct. Crim. App. 2004), citing United States v. Edwards, 35 M.J. 351 (C.M.A. 1992).

“We thus readily conclude that ex parte communications between a military judge and an SVC are generally proscribed.”

Yes, inexplicably, it was necessary for the Air Force Court of Criminal Appeals (AFCCA) to decide such an issue, as part of deciding what impact, if any, SVC’s ex parte communications had in a trial–a chilling thought.

In United States v. Turner, (an Air Force case) the SVC decided to have a little confab with the military judge before trial, allegedly about administrative matters–until you read the facts.

John Wesley Hall’s website is an excellent resource for issues involving the Fourth Amendment–  In pointing to a search warrant case Mr. Hall quotes from the opinion.

We remind McCollum’s counsel that “the statement of facts in an appellate brief should be a concise narrative of the facts stated in accordance with the standard of review appropriate to the judgment and should not be argumentative.” King v. State, 799 N.E.2d 42, 45 n.2 (Ind. Ct. App. 2003) (citing Ind. Appellate Rule 46(A)(6)), trans. denied (2004), cert. denied. Also, we disapprove of counsel’s accusation that the State has “stoop[ed]” to “desperate measures … to attempt to demonstrate the reliability and credibility of the confidential informant” mentioned in the affidavit and has “either played word games with this court or simply fabricated facts in its efforts to make an argument.” Reply Br. at 10, 11. Such hyperbolic barbs have no place in an appellate brief. Cnty. Line Towing, Inc. v. Cincinnati Ins. Co., 714 N.E.2d 285, 291 (Ind. Ct. App. 1999), trans. denied (2000).

McCollum v. State, 2016 Ind. App. LEXIS 370 (Sept. 30, 2016).

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.


The facts supporting this issue were:

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.

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 for the same counsel of missed deadlines.  The decision drew some angst among the military justice literati.  Based on the facts as written in the opinion, I’m not troubled by the decision.  We must wait a few weeks to see whether the appellant will petition CAAF (will let you know).

Today I’m reading and reviewing a new record of trial (Air Force as well).  It appears the defense filed a significant motion the day before trial.  The prosecution asserted they were not prejudiced by the late filing.  The military judge had this to say.

MJ: Understood. This seems part of a disturbing trend of counsel thinking that the week before trial is the time to begin case preparation. I’ve also heard this in the context of a request for continuance or docketing request that counsel feel the need to, as of right, have a week on site before every case, and I’ll just remind counsel that case preparation is an ongoing endeavor that should begin when the evidence is received, if not beforehand, and I really see no valid excuse for failure to file these motions in a timely manner. That being the case, as I stated, it’s just fraught with appellate peril for me to impose any sanction of any sort, so I find it somewhat amusing that I read comments from defense counsel saying that we don’t do enough to hold trial counsel’s feet to the fire when they violate discovery obligations, but correspondingly, the defense counsel basically has carte blanche, absent me pulling out the extreme contempt gavel, to ignore the scheduling orders of the court. And so it’s with great consternation that I will not impose any sanction at this point. The accused should not be the one who has to suffer for his dilatory counsel.

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 a motion, or stating an objection, I’ve always followed this format.

A. Object/Make Motion

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 discuss this important issue.  The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King.  The issue of IAC for failure to raise a pretrial motion is neither novel nor rare.  Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion.  I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges.  A more common issue is a motion to suppress, or speedy trial, or UCI.

  1. Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue:  [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
  2. Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”

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 engaged in choking during sex as part of rough sex because she liked it.  At the time I was already aware of autoerotic behavior, so this didn’t seem too off-the-wall to me as a potential defense.  Almost all forensic pathology and death investigations texts have a section on the deadly act of autoeroticism.  So I researched “choking during sex” and came across quite a bit of research and current research about the “choking game,” and  “erotic asphyxiation.”  There is confusion over application ofthe term and the scope of the behavior.  There is even a website that describes why, in the writer’s view, women like to be choked during sex, and how to do it properly.  Like autoeroticism, the choking game can be deadly or cause serious harm.

Since that case I have had a number of cases where the complaining witness alleges she was choked while being raped, and I have investigated that as a possible defense.  I have several appeals now where this issue is clearly presented.  But in each of these appellate cases the defense counsel ignored or pooh-pooed the idea that the client was telling the truth about rough sex involving choking and so may have missed a potentially valid defense.