Court-Martial Trial Practice

Seizure and Search — (And I think this includes computers that are password protected.) 

Jones on Closed Containers and Apparent-Authority Consent

Brian Jones has posted Keep Closed Containers Closed: Resolving the Circuit Split in Favor of Individual Privacy (Iowa Law Review, Vol. 97, November 2011) on SSRN. Here is the abstract:  The circuits are currently split on the issue of the scope of apparent-authority consent regarding the searches of closed containers. Specifically, the circuits disagree about what measures law-enforcement officers should be required to take to determine ownership of a closed container when, while conducting a search pursuant to consent, the circumstances are ambiguous as to whether the consenter actually owns the closed container. Because the Sixth Circuit’s approach provides the most Fourth Amendment protection and is most faithful to Supreme Court precedent, the Court should resolve the current split by adopting the Sixth Circuit’s approach.

Collateral effects – immigration.

CAAF decided United States v. Savala today.

I represented him at trial.  I also represented him on appeal to the NMCCA and CAAF.  This was a case I did on appeal pro bono.

fayobserver.com reports:  A sailor who officials say was caught trying to sell government secrets while attending training on Fort Bragg is set to go on trial later this week.  Apparently he waived his 32, a PTA in the offing?

Marine Corps Times has a short piece on “sexting:”  It’s called “sexting,” the practice of exchanging sexually explicit photos with another person or sending racy text messages via cell phone. Mirroring a trend in society at large, there is evidence that lots of Marines are doing it, though the Corps does not keep data on the social phenomenon nor is it directly addressed in the UCMJ.

Reuters reports: That Holmes, one of the Stryker Brigade accused’s will get a re-opened Article 32, UCMJ, hearing.  It’s about the photo’s.

USACIL also does computer forensics.

So today I get a call on a case (not mine), a forensic examiner.  USACIL used a particular item to image the drive in a current case.  Unfortunately they can’t explain why the report shows the same numbers that obviously come from another case.  It’s called contamination.  Yes, USACIL apparently contaminates CP suspect hard drives.

Anyone who has a computer case with USACIL examiners needs to look very very closely at the evidence and the reports, and of course get your own forensic examiner.

Here’s an excellent piece by Prof. Colin Miller.  It’s a follow-up to an earlier post.  I have it here.

One Track Bind: Brady, Melendez-Diaz, and Remedial Rationing

B-R-A-D-Y and Giglio, and Kyles, and others.

Defense counsel should not trust USACIL. A number of news agencies, particularly McClatchy are digging deeper into the problems of individuals as well as management at USACIL. These issues ought to be used anytime you are requesting expert assistance for anything touched by USACIL: the do bad work, and they hide it.

The military’s premier crime lab has botched more evidence testing than was previously known, raising broader questions about the quality of the forensic work relied on to convict soldiers, sailors, airmen and Marines.

Inside the Detainee Abuse Task Force, reported in The Nation.

I was ruminating on the Partington issue, and I was reading the recent NMCCA’s decisions, and I came across this.

Federal courts, to include the Court of Appeals for the Armed Forces, have long held that a defective specification challenged for the first time on appeal will be liberally construed in favor of its validity. See United States v. Watkins, 21 M.J. 208, 209 (C.M.A. 1986).

Now R.C.M. 907(b)(1)(B), clearly states that F2SO is not waived.  But it might be a good idea to consider NMCCA’s view on the “construction” issue.  Perhaps the best point to raise the issue then is after the prosecution rests or during the discussion on instructions if it’s a members case, or before the judge makes findings if its an MJA.

So, I’m objecting to a piece of evidence that the prosecution wants given to the members.  The objection is that the evidence contains inadmissible material.  The TC says, well that’s OK, give it to them with a limiting instruction.  So I say, wait a minute.  This is different to the situation where something is testified to and now we have to deal with it – unringing the bell and all that.  This is a situation where the TC wants to knowingly ring the bell, but “cure it” with a limiting instruction.  The MJ thought and had the exhibit redacted – phew.  So remember that phrase “you can’t unring the bell.”

So, a little while later the TC wants to admit another exhibit, same issue and concerns.  Only this is a skunk in the jury box.

So, here’s one of my favorite quotes:

In United States v. Serna, an unpublished opinion, NMCCA holds that indecent acts with a child over 12 is effectively an “LIO” of indecent acts with a child under 12 for sentencing purposes.  The age of the victim being a potential aggravating factor.  This was a GP case where the MJ failed to resolve inconsistencies presented partly during the providence inquiry and partly through several defense exhibits.