Uncategorized Category Archives — Page 78 of 115 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Supreme Court “Miranda” cases

February 24, 2010 | The Law Office of Philip D. Cave

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

February 23, 2010 | The Law Office of Philip D. Cave

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.

Interesting ACCA case pending

February 21, 2010 | The Law Office of Philip D. Cave

In United States v. Willis, No. ARMY 20071339, which is being argued on Thursday, the issue is: “WHETHER THE PROSECUTION AGAINST APPELLANT WAS BARRED BY A GRANT OF DE FACTO IMMUNITY WHEN THE GOVERNMENT AGREED TO DISMISS CHARGES IF APPELLANT PASSED A POLYGRAPH EXAMINATION AND APPELLANT PASSED A POLYGRAPH EXAMINATION.”

h/tip CAAFLog.

Major Hasan update 210210

February 21, 2010 | The Law Office of Philip D. Cave

Fort Hood and the Bell County Sheriff’s Office are in discussions to transfer Maj. Nidal Malik Hasan, the man accused of killing 13 and wounding 32 others during a Nov. 5 shooting at Fort Hood, from the Brooke Army Medical Center in San Antonio to Bell County Jail.

Reports kdhnews.com

John Galligan, attorney for Nidal Malik Hasan, said his client will be medically cleared to leave Brook Army Medical Center in San Antonio at the end of February.

Concerned about alcohol abuse

February 14, 2010 | The Law Office of Philip D. Cave

The Navy’s largest overseas installation has seen a significant drop in incidents of drinking and driving over the last two years, thanks in part, to a persistent sobriety checkpoint program, according to base officials.

Stars & Stripes reports.

The answer to alcohol related incidents, including deaths, injury, and property damage is simple. Treat alcohol as the drug that it is. Treat alcohol the same way any other drug use is treated in the military. Alcohol is considered the number one drug of abuse is it not. Ban alcohol use unless it is prescribed.

Civilian jurisdiction

February 13, 2010 | The Law Office of Philip D. Cave

CAAFLog reports:

Sens. Leahy and Kaufman and Rep. David Price introduced companion bills in the Senate and House titled the “Civilian Extraterritorial Jurisdiction Act” (CEJA?), on Feb. 2, 2010. H.R. 4567 and S. 2979 create a new section 3272 in title 18.

Major Hasan update

February 13, 2010 | The Law Office of Philip D. Cave

[L]ate Friday afternoon, the Army said the hearing has been moved to June 1 in response to a defense request.

KWTX.com reports. Although they still persist in referring the to Article 32, UCMJ, hearing as equivalent to a grand jury.

Major Hasan ripples

February 11, 2010 | The Law Office of Philip D. Cave

The military will formally discipline at least six officers, mostly from Walter Reed Army Medical Center in Washington, for failing to take action against the officer accused of carrying out last year’s deadly shooting rampage at Fort Hood, according to people familiar with the matter.

In announcing the findings, Defense Secretary Robert Gates said he had directed Army Secretary John McHugh to take "appropriate action" against Maj. Hasan’s past supervisors. Mr. McHugh, in turn, appointed Gen. Ham to investigate whether specific officers should be punished for failing to raise the alarm about Maj. Hasan.

Wall Street Journal reports.

Major Hasan update

February 11, 2010 | The Law Office of Philip D. Cave

The military will formally discipline at least six officers, most from Walter Reed Army Medical Center in Washington, for failing to take action against Fort Hood gunman Nidal Malik Hasan, according to people familiar with the matter.

Officials said the move reflects the military’s belief that the Nov. 5 assault could have been prevented if Hasan’s superiors had alerted authorities to his increasing Islamic radicalization.

Dallas News reports. Judge Pohl has been scheduled to start the Article 32, UCMJ, hearing on 1 March.

Crawford, Melendez-Diaz, Briscoe – and now Pendergrass v. Indiana

February 9, 2010 | The Law Office of Philip D. Cave

Here is a link to the full cert petition in Pendergrass v. Indiana. The question presented is:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009).