Court-Martial Trial Practice

Take a look at United States v. Magnon, in which NMCCA finds that a prosecutors closing argument on the merits was:

The trial counsel’s argument was inartful; it was not a model of how a trial counsel should close his case; and it was improper. While portions of his argument might have been subject to various interpretations, when viewed in their entirety, the argument amounted to prosecutorial misconduct.

Inartful?  And apparently he/she didn’t think about it in advance, as litigators are encouraged to do.  We read the various school trial practice blurbs and guides.  Apparently the TC winged it.  If he/she didn’t wing it, then he/she thought about it ahead of time.  So, how could it not have been deliberate?

Where are we at.

CrimProfBlog brings us:

Cicchini on the Confrontation Clause

Federal Evidence Review brings to us a useful argument about the “notorious” slippery slope between propensity evidence and evidence admitted under Mil. R. Evid. 404(b).  I’ve noted elsewhere the tendency of prosecutors of making talismanic assertions that, “it’s evidence of intent, motive, modus, your honor.”

The defense and judges need to hold the prosecution to establishing a record of why the evidence is admissible.

The interpretation and application of FRE 404(b) can be notorious – so much so that some courts have suggested that the rule established a "slippery boundary" between properly admitting evidence of a defendant’s intent and improperly admitting evidence of a defendant’s propensity. In a recent case, the Seventh Circuit briefly explored where a court had slipped beyond the boundary, although the Circuit concluded the error was harmless.

In United States v. McLean, the AFFCA determined that aggravated assault is an LIO of maiming.  The defense theory on appeal, but not at trial, was that the AA was not a listed LIO (an issue addressed in Jones).  Just because it is or isn’t listed as an LIO in the RCM is not an automatic rule on the LIO in a particular case; and that the LIO didn’t meet the elements test.

This argument is unpersuasive. First, whether or not an offense is listed in the MCM as a lesser included offense is not dispositive because the MCM expressly states that such lists are “not all-inclusive.”

This is consistent with Jones and Schmuck.  The court then went on to explain why they believe a Jones/Schmuck analysis favored the government.

Richard Gabriel was the defense jury consultant in that case.  Here is his piece on the case.

Many of the hosts and regular guests of the HLN have admitted that they believed Casey Anthony to be guilty either before or during the trial. And it was with this prejudgment that both the press and the public became both police and prosecutors, poring over the evidence and forming theories about how and why Casey murdered her daughter. Not if, but how. The media also put the defense team, any potential witness for the defense, or anyone who spoke in favor of the defense on trial, even investigating aspects of their personal lives. As a result, the defense suffered from unfair hardships – potential witnesses were unwilling to testify on Casey’s behalf for fear of being denounced or humiliated in the press. Obviously, this impedes a high-profile defendant’s ability to put on a full defense, and thus his or her right to a fair trial. In fact, the vitriol on the Internet sites was so venomous and one sided, I purposely ignored the blogger’s posts and responses to news articles.

In the Anthony case, Florida State Attorney General Pam Bondi publicly proclaimed on a national news show before the trial that the “evidence was overwhelming” of Casey’s guilt[7].

Brown v. United States.

Petitioner sought relief for insufficiency of proof on a rape conviction and recalculation of some sentence credit.

Petitioner now claims his pretrial confinement was 230 days instead of 210, and seeks adjustment by this court of his military sentence. As respondents point out, however, petitioner failed to include this claim in his direct appeal to the CAAF. Petitioner cited 230 days of pretrial credit in his argument to the NMCCA that he should be granted two for one days of credit, but raised no claim to the CAAF seeking additional or corrected credit for his pretrial confinement.

The new online edition of The Jury Expert has several articles of interest to the trial practitioner.

Narrative Persuasion in Legal Settings.

The authors note the extensive research on rhetorical or argument based communications to the “jury” with narrative communications.  While the research into narrative argument is relatively young, there are useful considerations for todays trial litigator.

San Antonio News-Express reports:  Maj. Nidal Malik Hasan won’t go on trial until March, but the Army already has selected 12 potential jurors.  The jury, however, isn’t coming from Fort Hood, where Hasan is accused of gunning down 45 people in a 2009 shooting spree. In what attorneys say is a bow to concerns about Hasan’s right to a fair trial and a possible appeal following a verdict, the panel of six colonels, four lieutenant colonels and two majors will come from Fort Sill, Okla.

Navy Times reports the issuance of another Secretarial letter of censure:   In a slap at the fading and officially out-of-favor tradition of racy, sarcastic and irreverent aviation call signs, a just-retired Navy fighter squadron commanding officer was censured by Navy Secretary Ray Mabus Wednesday for failing to halt and subsequently condoning the hazing of a junior officer at a 2009 call sign review board where assembled officers voted to call the officer “Romo’s Bitch,” the Navy announced late Friday.

Army Times reports:   An Army medic says a soldier accused of masterminding the murders of three Afghan civilians last year boasted about one of the killings.  The News Tribune newspaper reports that Pvt. Robert Stevens told an investigating officer during a hearing at Joint Base Lewis-McChord south of Seattle Friday that Staff Sgt. Calvin Gibbs of Billings, Mont., acknowledged participating in the February 2010 killing.

Navy Times Reports:   The commander of an EA-18G Growler jet squadron on deployment in the Middle East was fired for what officials said is an “alcohol-related incident” in Bahrain last week, the Navy said Tuesday.

Here are some thoughts from Professor McElhaney, in the ABA Journal on examining experts at depositions.  It is not too hard to replace “deposition” with “Article 32.”  I know, I know, it’s not often the expert shows up at a 32.  But other witnesses do.  Some of the same principles apply to any witness at an Article 32.