Domestic violence is bad. But I would suggest that the issue is normally only dealt with as a women’s issue.
This report should cause people to think – just a little bit – that men are not always the perpetrators, and that “alway believe the victim” – read the woman, training is flawed.
One-third of domestic violence victims in active-duty military families are men
“That the power to prosecute is a fearsome thing, and, when employed as political tool, is the quick road to tyranny.”
Bill Otis, Politics & Prosecution, a Toxic Brew, 16 August 2014.
I am not a libertarian, but I am one of the defense counsel and independent liberals Mr. Otis will frequently berate, sometimes with rather over the top hyperbole. I read crimeandconsequences regularly because many posts raise important questions, but you have to take note of the style. But on this toxic issue we are of the same mind; both as to the Perry prosecution issue and also the abuse of power.
Prof. Colin Miller, one of my favorite bloggers on evidence, addresses a best evidence issue raised in People v. Haggerty, No. 129, (N.Y. 2014).
Haggerty was accused of defrauding Mayor Bloomberg. During presentation of the prosecution case they called a witness to testify about the contents of a trust fund through which the fraud was alleged to be done.
For the military defense lawyer an immediate lesson is that the defense failed to object at trial. When litigating a court-martial under the UCMJ, all should be aware that a failure to object to evidence places the appellate military defense lawyer in the difficult position of having to argue harmful plain error. In a footnote to United States v. Rankin, 64 M.J. 348, 351, n.3 (C.A.A.F. 2007), the court noted the numerous objections to documentary evidence citing MRE 602, authenticity, and best evidence. But they were not raised on appeal so the court did not address them. Trial defense counsel should not be dissuaded from objecting. As a military appellate defense counsel I much prefer to have the objections – for obvious reasons.
Riley v. California. An important ruling today.
If you are concerned or unhappy with the high rate of “affirmed” – often without relief – U.S. courts-martials, perhaps you should consider moving to India.
My good friend and colleague Gene Fidell at globalmjreform.blogspot.com/, reports on the 90% rate of reversal of court-martial convictions.
Further to yesterday’s post this article from the Times of India reports that the High Court has set aside decisions of the Armed Forces Tribunal about 90% of the time since the Delhi High Court decided in 2011 that AFT decisions were subject to review in the High Court as well as directly by the Supreme Court.
Most are now familiar with the NMCCA decision in United States v. Howell. In that case, compared to several others, the court found there was UCI affecting the trial and granted the appeal in Howell’s favor. Howell is not out of legal jeopardy, because the court decided:
A rehearing may be ordered.
And it is reported that Howell is still in pretrial confinement., while a decision is made on whether to conduct a retrial or administratively separate him with an OTH.
I posted at CAAFLog about a search conducted in the defense counsel offices at Camp Pendleton.
Here Marine Corps Times reports some of the fallout, including it looks like one of the photos we put up on CAAFLog.
In the wake of a controversial search of Camp Pendleton, California, defense attorneys’ offices by military investigators, the senior Marine prosecutor who planned the search has been ordered off a number of cases and reassigned to a new job.
I have commented before that an Appellant sometimes gets a grant on a Grostefon issue, and sometimes wins something.
Unfortunately for Cerion R. ALLEN, he got a Grosty grant, but the victory was Pyrrhic.
No. 14-0519/AR. U.S. v. Cerion R. ALLEN. CCA 20120742. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we agree with Appellant’s personally asserted contention that the facts established during the plea inquiry and in the stipulation of fact demonstrate only a single conspiracy. Appellant was convicted of one conspiracy to commit robbery (Specification 2 of Charge II) and one conspiracy to commit burglary (Specification 3 of Charge II), but the plea inquiry and stipulation of fact show that there was only one agreement between Appellant and his co-conspirators to break into and rob the alleged drug house. Therefore, Specification 3 of Charge II should be consolidated with Specification 2 of Charge II to become a single specification. See United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000); United States v. Reliford, 27 M.J. 176 (C.M.A. 1988) (summary disposition). Although the conspiracy offenses are consolidated, we are satisfied that Appellant suffered no prejudice as to his sentence. Accordingly, it is ordered that said petition is granted on the following personally asserted issue[.]
The ACCA has issued an unpublished opinion in United States v. Barnes.
We all of us have dealt with the client who wants to – and should – plead guilty to some offenses, but he tells you he was so drunk at the time he remembers nothing, or at least very little. Now what, can he be provident.
The basic answer is yes. We have the general principle:
Federal Evidence Review is one of many websites I review on a regular basis. The blog has, “noted how the lower courts continue to grapple with the application of the Confrontation Clause to expert testimony based on the lack of clarity from recent Supreme Court cases. See, e.g., Confrontation Clause: Continuing Uncertainty For Expert Testimony Following Williams v. Illinois.”
Based on recent Supreme Court cases involving expert testimony under the Confrontation Clause, the Soto case provides some useful guidance. First, reexamination or "second analysis" testimony should be permitted where the second examiner conducts an independent review of the evidence and testifies about his or her independent conclusions. Second, to avoid challenges of impermissible bolstering, the second examiner should minimize reference to the conclusions of the first examiner. Any testimony about testimonial statements of the non-testifying first examiner may be subject to challenge under the Confrontation Clause.
The author discusses United States v. Soto, (1st Cir. 2013). Justice Souter is a member of the panel, although he did not write the opinion.
Court-Martial Trial Practice Blog