Court-Martial Trial Practice

No, we are not discussing Macbeth.

The great Professor Friedman, on his confrontation rights blog has some thoughts and commentary and confrontation issues, some of which involve the recently granted Williams v. Illinois.  In his recent comment he reminds us of two errors prosecutors like to commit:  making an end run around hearsay and confrontation, often coupled with a talismanic incantation that the testimony or evidence isn’t offered for the truth.  (This BTW is another aspect of the “context” issue I’ve posted about already: Just laying the groundwork your honor! Background testimony by police;  Investigator context testimony .)

The point Professor Friedman is making is that we often make the correct hearsay objection, but we also need to consider making a 6th amendment objection to preserve the issue.

Federalevidence review has an excellent piece on leading questions during the prosecution direct.  As part of the comment they say:

The Seventh Circuit recently explored the limitation on leading questions through FRE 611(c), admonishing the government about a trend that was disturbing, even if at most it would be only harmless error.

I see this regularly in courts-martials as well.  There are times when it is proper to ask leading questions:  general introductory matters, moving from a broad topic to another, developing the testimony or focussing a witness.

Client leaves work at 1600.

Goes to get a haircut and have a beer.

Client leaves checkout counter at NEX (shown on video walking around store and register receipt) at 1658.

The News-Tribune reports:  The attorney for a local soldier and alleged member of a so-called Afghan kill team used a hearing Monday and Tuesday to stage an all-out assault on the government’s key witness in the case.  This would be a reference to Pvt Morlock.

And Stars & Stripes reports:  A key government witness in the case of U.S. soldiers accused of murdering Afghan civilians for sport had lied about two of the defendants in hopes of winning leniency, according to a man who was locked up with the witness.

Here’s a new twist; Navy Times reports:

A senior master-at-arms and expert dog handler once censured by Navy Secretary Ray Mabus for abusing subordinates has, in a remarkable twist of fate, been awarded the Silver Star for battlefield heroism during a harrowing 2009 firefight in Afghanistan during which he shot and killed two enemy fighters firing at him from less than 15 feet away.

Senior Chief Master-at-Arms Michael Toussaint “displayed great battlefield courage,” Mabus wrote in the May 11 citation, a copy of which was obtained by Navy Times. The Navy verified its authenticity.

Courtesy of Professor Friedman:

It’s going to be a little while before I offer comments directly on Williams. But meanwhile, here are thepetition for certiorari, the state’s brief in opposition, the reply by Williams, and the crucial testimony ofSandra Lambatos.

TBO.com reports that:  The mother of [Kiel M. Johanson] a Coast Guard chief who is being kicked out of the service over a hazing incident says her son is the victim of a "witch hunt" and is going to appeal his court martial.  I believe the older Navy terms included “pink belly” and “greasing.”  I seem to remember from defending such cases back in the 80’s.

LTC Lakin, he is still a lieutenant colonel, comments on his appeal (reported on Military.com).

"Realistically, I understand that a very small fraction [of appeals] get reviewed and a smaller fraction get overturned or anything," Lakin said. "But the appeals attorney has some issues he wants to bring up."

I would imagine that the evidence on the missing movement would be an issue.  He contested that charge, and my sense was that there were times of uncertainty in the evidence.  Ultimately though, the members decided the issue against LTC Lakin.  Will the ACCA, using its awesome plenary powers of de nove review reverse.  Always a possibility, but will that affect the sentence – assuming ACCA sets-aside the MM conviction?

Professor Friedman, a true guru of “confrontation” issues notes:

It appears that the next case in the Melendez-Diaz line will come very quickly. The Supreme Court granted cert today in Williams v. Illinois, No. 10-8505, seeking review of People v. Williams, 939 N.E.2d 268 (Ill. 2010). The case presents the issue of what I have called the "not for the truth" end-run in the context of expert evidence: The Illinois Supreme Court held that the absent analyst’s report was introduced not for the truth of what it asserted but rather "to show the underlying facts and data [the in-court witness] used before rendering an expert opinion in this case." I will write something more substantive on this later.

And he opines a little with early thoughts on Bullcoming.

There was a piece over the weekend that Bozivech would have his sentencing today.  It appears it will be delayed until 8 August, reports the Miami Herald.