Court-Martial Trial Practice Blog

The court will order . . . redacted

October 8, 2011 | The Law Office of Philip D. Cave

From time to time counsel want to offer documents which have objectionable information in them. There is an objection, and as often happens the court encourages or orders the objectionable parts be redacted. My here pointer relates to how the redaction is done – it must be done carefully. I was reminded of this general point by SCOTUSBlog’s Argument Preview of Greene v. Fisher. Greene is a case about Bruton (confrontation) issues and is not relevant to current military practice; it has been many years since the military has done a joint trial. What is relevant for us in practice is the redaction issue. Here are some relevant points from Rory Little’s preview.

The trial judge, however, denied severance and ordered instead – and not inconsistently with the law at the time – that the codefendants’ statements be “redacted” to omit any mention of Greene by name. The government complied but – and again, not inconsistently with the law at that time – replaced Greene’s name at certain points with the word “blank” or similar symbols, making it clear that redaction of someone’s name had occurred.

Thinking on notions of perception and implication and common sense, how would a jury interpret that document, or any document with redactions. Thinking on human behavior, and regardless of any limiting instruction from the judge, isn’t a jury going to try and figure out what’s redacted.

Up periscope!

October 7, 2011 | The Law Office of Philip D. Cave

Navy Times reports: Angry that he was not invited to a group dinner, the commander of a Navy flight squadron hurled insults at subordinates and slapped another sailor several times while they were all drinking at a bar in Bahrain, according to documents obtained by The Associated Press.

Stars & Stripes reports that: The U.S. military on Friday issued a peninsula-wide curfew for all U.S. troops in South Korea, one day after South Korean authorities took custody of a U.S. soldier accused of raping an 18-year-old Korean woman.

“Given the incidents that have occurred over the last several months, I’m reinstating the curfew to assess current conditions, mission requirements, and potential force protection concerns.”

The vacant chair

October 7, 2011 | The Law Office of Philip D. Cave

CAAF Daily Journal for 4 October has this entry in regard to the oral arguments scheduled for next week.

In view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge has called upon Senior Judge Andrew S. Effron to perform judicial duties in the above cases, and that Senior Judge Effron has consented to perform judicial duties in the cases under Article 142(e)(1) (A)(ii), Uniform Code of Military Justice, 10 U.S.C. § 942(e) (1)(A) (ii)(2006).

The Army has a discipline problem

October 5, 2011 | The Law Office of Philip D. Cave

No, I didn’t say that, LTG Mark P. Hertling, USA, Commander U. S. Army Europe did, as reported in Army Times. (He’s also been talking about troop strength in Europe.)

Soldier discipline has deteriorated to the point where it risks becoming “cancerous,” a senior Army general said Wednesday.

In his remarks he said:

Up periscope!

October 4, 2011 | The Law Office of Philip D. Cave

Sun Herald reports: A chief warrant officer who lead Coast Guard Station Gulfport until last year may be ousted from military service after being convicted on an array of charges in court martial proceedings.

Chief Warrant Officer Brandt Martin was removed from the helm at Gulfport in July 2010 while an investigation into his activities was ongoing. At court martial proceedings in New Orleans last week, a military judge convicted Martin of dereliction of duty, making a false official statement, wrongfully disposing of government property, larceny and soliciting another to commit a violation.

CDR Salamander reports on continued fall out with the Velasquez case from Yoko.

Another NMCCA Fosler

October 4, 2011 | The Law Office of Philip D. Cave

I have previously posted on the current approach of NMCCA to Fosler cases that are being heard by them for initial review. So far there has not been an opinion in one of the trailer park remands. Still no “Fosler” out of Army or Air Force or Coast Guard, so no “split” in the “circuits” for CAAF to decide.

United States v. Glover, No. 201100211 (N.M.Ct.Crim.App., 29 Sep 2011) (convicted according to pleas) – Affirmed. No sentence relief.

I think we have enough NMCCA cases to glean their approach, so I’ll stop counting and just note ones that are out of the ordinary. Of the cases NMCCA has decided so far I’d expect them all to petition CAAF. But the one of most interest will be Raucher. Just when we thought it might get easy on the Fosler issues. That’s because he was charged under a deficient Article 134, UCMJ, specification, but convicted of an LIO. Had he been convicted of the 134 specification, then under the NMCCA “Fosler jurisprudence” it appears he would have had the conviction set-aside.

Drunk enough to consent

October 3, 2011 | The Law Office of Philip D. Cave

I found this case, pointed out by John Wesley Hall at fourthamendment.com to be of interest in light of the ongoing discussion regarding Article 120 and alcohol. As I’ve noted before, a lot of sexual assault awareness training teaches that a person who takes one drink “can’t consent” to sex. We all know that’s not true but the training persists.

Demonstrably intoxicated defendant (.27% & .33%) could consent to a search. The parties litigated the level of intoxication with expert witnesses. United States v. Tellefsen, 2011 U.S. Dist. LEXIS 108495 (E.D. Wis. June 2, 2011).

Note the .bac levels. And here is a piece that Mr. Hall quotes.

Whatever happened to . . .

October 2, 2011 | The Law Office of Philip D. Cave

Former Sergeant Major of the Army McKinney?

wtop.com reports:

Former Sgt. Maj. of the Army Gene McKinney will enter a plea, rather than stand trial for allegedly striking a slug passenger who demanded to be let out of McKinney’s car in Oct. 2010, WTOP has learned.

Up periscope! 011011

October 1, 2011 | The Law Office of Philip D. Cave

Army Times reports: A court-martialed U.S. soldier has been found not guilty by reason of lack of mental responsibility in the killing of a civilian contractor in Iraq.

The Capital reports: A Naval Academy midshipman was found guilty of raping and sexually assaulting a classmate and lying to investigators during a court-martial at the Washington Navy Yard Wednesday. Apparently the members deliberated for 11 hours. In a further report the sentence is a “dismissal,” and six months confinement.

The Republic reports: A court-martial was expected to wrap up Friday for a U.S. soldier accused of killing a civilian contractor in Iraq, and a military judge will then decide whether Pfc. Carl T. Stovall was mentally competent when prosecutors say he shot the Hungarian laborer to death. Here are some of the points from Friday’s hearings reported by the kdhnews.com.

In the Supremes-October 2011 term

October 1, 2011 | The Law Office of Philip D. Cave

Monday kicks off opening arguments for the new SCOTUS term. Here is a listing of pending cases, culled from SCOTUSBlog, of criminal law cases that may have some relevance to military justice practitioners (non of them are military cases).

Argument date | case number | case name | summary of QP.

10.04

10-63

Maples v. Thomas

Whether the Eleventh Circuit properly held that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the state’s own conduct contributed to the default, and petitioner’s attorneys of record were no longer functioning as his agents at the time of any default.

10.04

10-680

Howes v. Fields

Whether this Court’s clearly established precedent under 28 U.S.C. § 2254 holds that a prisoner is always "in custody" for purposes of Miranda any time that prisoner is isolated from the general prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances.

The next two cases are of particular relevance to defense counsel.

10.31	10-444	Missouri v. Frye	Can a defendant who validly pleads guilty assert a claim of ineffective assistance of counsel by alleging that, but for counsel’s error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms? What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?
10.31	10-209	Lafler v. Cooper	Whether a state habeas petitioner is entitled to relief when his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial.
11.2	10-8974	Perry v. New Hamp.	Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances or only when the suggestive circumstances were orchestrated by the police?
11.8	10-8145	Smith v. Cain	1) Whether there is a reasonable probability that the outcome of Smith’s trial would have been different but for Brady and Giglio/Napue errors; 2) whether the state courts violated the Due Process Clause by rejecting Smith’s Brady and Giglio/Napue claims.
12.6	10-8505	Williams v. Illinois	Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts violates the Confrontation Clause, when the defendant has no opportunity to confront the actual analysts.

SCOTUSBlog notes several (non criminal law) cases still to be scheduled for argument. And cases for the January, February, March, and April court sittings are yet to be set.