Court-Martial Trial Practice BlogMAJ Joel P. Cummings, Is Article 125, Sodomy a Dead Letter in Light of Lawrence v. Texas and the New Article 120? The Army Lawyer, January 2009.
Articles Posted in Uncategorized
Dog’s again.
United States v. Bell, No. 06-4413, 2009 U.S. App. LEXIS 2901 (6th Cir. 17 February 2009). Recently published, this case is a decent primer on automobile stops with drug dog sniffs: what turns a traffic stop into a seizure, etc.
Search warrants and authorizations
Do you have clients who want to know about search warrants or authorizations, and do you want information and access? Well of course. Here's an interesting case which raises the issue of access to search warrant materials pre-indictment under the Fourth Amendment — or in the military pre-preferral. If the premise of the case is correct, then NCIS, OSI, CID, CGIS, or the SJA can't just gaff you off when you ask for the search authorization materials prior to preferral. A writ of mandamus would seem to be in order.
In re Searches & Seizures, 2008 U.S. Dist. LEXIS 107087 (E.D. Cal. December 19, 2008).
Note, there is no "sealing" of pre-indictment documents in the military as there is in federal district court.
Security clearance consequences.
As noted earlier, the Smith Amendment was changed recently. An astute reader has provided a new name for us — the commenter refers now to the "Bond Amendment." Instead of the old Smith Amendment at 10 U.S. Code 986, the new law on security clearances for persons sentenced to confinement or certain punitive discharges is at 50 U.S.C. 435b, Section 3002, Pub. L. 108-375, §1062, 118 Stat. 2056. For quick comparison here are the two as suggested by Mr.Henderson.
The Smith Amendment, 10 U. S. Code 986prohibited only DoD from granting or continuing security clearances for:
Convicted felons who were incarcerated for more than a year as a result of the conviction.
Current users of illegal drugs.
Mentally incompetent persons.
Anyone discharged or dismissed from the Armed Force under dishonorable conditions.
Current users of illegal drugs.
Mentally incompetent persons.
Anyone discharged or dismissed from the Armed Force under dishonorable conditions.
Snippets — Search & Seizure
Some snippets from cases released to LEXIS.
Plain view.
Under the plain view doctrine, evidence may be seized without a warrant if the following three conditions are met: "(1) 'the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed,' (2) the object's incriminating character is immediately apparent, and (3) the officer has 'a lawful right of access to the object itself.'" United States v. Hughes, 940 F.2d 1125, 1126-27 (8th Cir. 1991) (quoting Horton v. California, 496 U.S. 128, 136-37, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990)).
Gitmo, and whata todo
Greg Bruno, Backgrounder: Closing Guantanamo, Council on Foreign Relations, 12 February 2009.
You will notice a reference to trial by court-martial under the UCMJ.
Some, including legal experts with the Congressional Research Service,
Search incident.
United States v. Goode, No. 07-2269, 2009 U. S. App. LEXIS 2471, unpublished op. (3d Cir. 9 February 2009).
The interesting point for this case is that the court found that telling a person to stop, ordering them to lie on the ground, and placing them in handcuffs is merely an investigative "stop." Once additional evidence is developed then the person can be arrested and then searched incident to arrest.
Fortunately this is not a situation likely to occur in military cases on base. But the case is interesting to read for a reminder of searches incident to arrest.
Credit for pretrial delay.
United States v. Gross (Military Judge), Army Misc. 20081049 unpublished op. (A. Ct. Crim. App. 9 January 2009). [When you get to the court site, go to the "summary dispositions – by date" page.]
This case is a government petitione for an extraordinary writ (not listed in the Denedo pleadings at the Supreme Court as a overusage of the All Writs Act?).
——————————————————-
SUMMARY DISPOSITION ON
PETITION FOR EXTRAORDINARY RELIEF
——————————————————
SUMMARY DISPOSITION ON
PETITION FOR EXTRAORDINARY RELIEF
——————————————————
This is funny.
David Mills hosts a fabulous blog — Courtoons.
Join him at his site daily.
Here is the entry for 10 February 2009, a situation well known to appellate defense counsel.
C.O. status for war objectors.
Evan Knappenberger, Acknowledge soldier's right to object, Seattle PI.com, 9 February 2009.
Mr. Knappenberger is described as, "an Iraq War veteran and a Davis-Putter Scholar at Whatcom Community College in Bellingham."
He argues that war objectors should be treated the same as conscientious objectors.