Court-Martial Trial Practice

New York Times Sunday Review.

You may remember that CAAF dealt with MSRP in a number of cases.  See e.g. United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007)(not cruel and unusual punishment; not an increase in punishment based on the facts; failure to explain this collateral consequence doesn’t make plea improvident).

We do not take lightly the impact of the Mandatory Supervised Release program on Appellant . . . . Likewise, we do not disregard the possibility that the Mandatory Supervised Release program could be imposed in a manner that increases the punishment above the punishment adjudged by a court-martial. The burden, however, is on the party challenging the conditions to demonstrate that there has been an increase above the punishment of confinement imposed at trial.

Now we have Banks v. United States (Commandant, USDB).

I remember studying Miranda and a couple of other significant constitutional law cases in school.  We also learned that the case decision didn’t necessarily help the individual.  It wasn’t Miranda, but another one got stabbed to death in jail after his case was decided, Escebedo, I think.

So, Professor Friedman alerts us to an irony in:

Here’s an irony of sorts. The Massachusetts Supreme Judicial Court has held the rule of Melendez-Diaz not to be retroactive — and it did so in Commonwealth v. Melendez-Diaz, 2011 WL 3000275 — yes, involving a prior conviction of the same Luis Melendez-Diaz.

Petty Officer Savala was discharged from the naval service 28 July 2011.

DMLHS at CAAFLog is reporting a decision in United States v. Lee.

NMCCA did not find error on any of the reasons advocated by the appellant.  However, they set-aside the findings and authorized a rehearing.

DMLHS notes that Capt Lee was represented by a non-Code 45 advocate:  I listened to the oral argument.  Captain Lee was very well served.

On 27 July CAAF issued a summary disposition in:

No. 11-0486/NA. U.S. v. Akeem A. WILKINS. CCA 201000289. Review granted on the following issue:

WHETHER APPELLANT’S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED WHEN HE WAS CONVICTED FOR ABUSIVE SEXUAL CONTACT AS A LESSER INCLUDED OFFENSE OF AGGRAVATED SEXUAL ASSAULT.

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.