Court-Martial Trial Practice BlogArticles Posted in Uncategorized
Pretrial confinement post-conviction
Here’s the scenario:
Client is convicted at court-martial. Sentencing is to take place the next day, or a Monday after a Friday conviction. Based on the charges and the evidence there’s a reasonable likelihood the client will get some confinement. The command wants to put the client in pretrial confinement pending sentencing. Can they?
1. If the client was already confined, the confinement can be continued.
Denial of counsel of choice
There are a number of ways denial of counsel of choice can come up, most frequently related to the availability of civilian counsel. Here’s an interesting one.
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). The opinion is written by Justice Scalia. Here are the important part of the opinion:
In sum, the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation "complete."
Several new CAAF opinions
United States v. Cowgill.
WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN
DENYING THE DEFENSE MOTION TO SUPPRESS ALL EVIDENCE
FROM APPELLANT’S HOME.
The two underlying point were: potential erroneous information given for a search warrant (statements were factually incorrect, but believed to be true by the detective at the time), and if there was erroneous information, was there enough probable cause without the erroneous information.
Crawford issue
On habeas review of state court convictions, the detective’s trial testimony about the statements of two non-testifying co-actors which implicated the defendant in the shooting and which were used to confront the defendant during his interview violated the Confrontation Clause and constituted plain error, in Ray v. Boatwright, _ F.3d _ (No. 08-2825).
Since Crawford v. Washington, 541 U.S. 36 (2004), testimonial statements are inadmissible under the Confrontation Clause unless the declarant testifies subject to cross examination. There are not many cases in which a Confrontation Clause challenge raised for the first time on appeal may result in plain error. The Seventh Circuit recently identified one case which did.
Major Hasan update
The Temple Daily Telegraph reports that:
Defense attorney John Galligan said Friday that accused Fort Hood shooter Maj. Nidal Hasan could be back in Bell County as early as Monday.
Hasan was notified Thursday that the therapy he was receiving at Brooke Army Medical Center in San Antonio was officially finished. He has been under guard at the hospital since Nov. 7 when he was flown there by helicopter from Scott & White Memorial Hospital in Temple.
CAAF and Article 62 appeals
CAAF has issued an opinion in United States v. Bradford, a government appeal of a pretrial ruling.
The appeal was on a military judge declination to pre-admit a Lab Package in a urinalysis case. AFCCA had no trouble saying that a declination to pre-admit evidence is appealable. CAAF had no trouble correctly saying that AFCCA was wrong.
The prosecution proffered the standard lab package and told the military judge they’d produce an expert at trial to discuss the package. That basically was it. On that the military judge was supposed to pre-admit the package. Rather than pre-admit, the military judge told the prosecution that they’d need to produce witnesses and pull out some pages that might be pre-admitted separately. The prosecution then ‘threatened’ the military judge that they were going to appeal. Notably the military judge expressed an opinion that his “ruling” wasn’t appealable. And it appeared the military judge was going to hold the prosecution to its burden to produce actual, like real, evidence. Rather than produce evidence and testimony necessary to lay a foundation for the documents either in the motion or at trial, the prosecution, rather peevishly to my way of thinking, appealed.
Major Hasan update
The Article 32, UCMJ, hearing has been rescheduled for 1 June 2010.
KWTC.com reports.
Supreme Court “Miranda” cases
The court has decided Maryland v. Shatzer (background documents on SCOTUSWiki here ) and also Florida v. Powell (background documents on SCOTUSWiki here). Both cases relate to “Miranda” rights and confessions. In Powell, the issue was how much detail must go into a “Miranda” warning in order to be sufficient, in Shatzer the court addresses the break in custody situation.
In Powell the issue was whether the rights advice given properly conveyed to the suspect that he had the right to counsel present during questioning and not just before being questioned. After an interesting discussion showing how ambiguous the language used was, the court found the appellant was adequately advised. Interestingly, the court noted that:
The standard warnings used by the Federal Bureau of Investigation are exemplary. They provide, in relevant part: “You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning.” Ibid., n. 3 (internal quotation marks omitted). This advice is admirably informative, but we decline to declare its precise formulation necessary to meet Miranda’s requirements. Different words were used in the advice Powell received, but they communicated the same essential message.
Coast Guard appellate case of interest – and providency
Is a false marriage certificate to claim otherwise unauthorized allowances an official document? No, it would be the presentation of that document as showing an entitlement that is the false statement, not the marriage certificate itself. The court also found the appellant’s plea to a conspiracy to commit a false official statement as improvident. The providency issue seems as much related to the military judge’s questioning method, rather than a factual basis. This was a not untypical plea where the military judge had to help the accused through providency by getting yes / no answers to leading questions.
United States v. McClary.
Here are some stream-of-consciousness thoughts for the defense counsel.