Uncategorized Category Archives — Page 117 of 117 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Tea Leaves, Terminal Leave, and Discharges Post-trial.

January 26, 2009 | The Law Office of Philip D. Cave

In United States v. McPherson, CCA 20070115, No. 08-0651/AR, the court has granted the following issue.

WHETHER AN HONORABLE DISCHARAGE (SIC)FROM THE UNITED STATES ARMY RESERVE WITH ACCOMPANYING ORDERS, EFFECTIVE AFTER SENTENCING BUT PRIOR TO ACTION BY THE CONVENING AUTHORITY, HAS THE EFFECT OF REMITTING THE BAD-CONDUCT DISCHARGE ADJUDGED AT THE APPELLANT'S COURT-MARTIAL AND LATER APPROVED BY THE CONVENING AUTHORITY. SEE STEELE v. VAN RIPER, 50 M.J. 89 (C.A.A.F. 1999).

(As noted earlier the lower court opinion does not appear to be available on the court's website or LEXIS.)

A Red Herring, Not – – –

January 26, 2009 | The Law Office of Philip D. Cave

— Or more likely you can't un-ring the phone.

United States v. Thomas, 2009 U.S. Dist. LEXIS 4389, No.08-cr-87-bbc-02 (W.D. Wis. January 20, 2009), is of interest for several reasons: the use of cellphone tracking technology, and application of the recent U.S. Supreme Court decision in Herring v. United States.

First for the techies. Police were investigating a bank robbery involving four suspects. As a result of some astute investigating they interviewed a potential suspects mother. During the interview she told the police about some cellphone calls, in particular a lot of calls from one number where she didn't know the caller. Acting on a hunch, a good hunch as it turned out, police then obtained a trap and trace warrant on that cellphone number. Police then used some sophisticated equipment.

Probation as a Result of Court-Martial

January 21, 2009 | The Law Office of Philip D. Cave

Major Tyesha E. Lowery, One "Get Out of Jail Free" Card: Should Probation Be an Authorized Courts-Martial Punishment?, 198 Mil. L. Rev. 165 (2008).

Probation is not an authorized punishment that can be adjudged by the military judge or members. The author of this article advocates allowing the trial sentencer to impose "probation," and therefore substituting the military judge's own view of what's good for the unit for that of the commander.

Lest you think otherwise, I'm not averse to a properly constructed, managed, and supervised probation program. It could begin with something similar to the A.F. return to duty program or a residential, non-custodial, correctional training; a form of "liberty risk" / Cinderella liberty; monthly random urinalysis; alcohol screening; anger management counseling; and various other counseling programs.

More on Interrogations

January 20, 2009 | The Law Office of Philip D. Cave

On 3 February, the Court of Appeals for the Armed Forces will hear oral argument in United States v. Delarosa, No. 08-0390/NA [2008 CCA LEXIS 4, N.M. Ct. Crim. App. January 10, 2008)(unpub. opinion)]. The pending C.A.A.F. argument is somewhat interesting in light of the pending Supreme Court argument in Kansas v. Ventris, which we looked at the other day.

Whether there is a violation of Miranda by approaching an individual after invoking his rights depends on which right was invoked, who initiates communication, the subject matter of the communication, when the communication takes place, where the communication takes place, and the time between invocation of the right and the second interview.

United States v. Watkins, 34 M.J. at 345.