Court-Martial Trial Practice

Many years ago I spent a lot of time prosecuting and defending “pack rats.”  There was a slew of “national security cases” in the late 1980’s, post-Walker.  It appears there is a new name for personnel who took classified material home either by accident (in the briefcase or notebook), or because they wanted to have them as examples for future work.  That was in the days before just about everything was available in digits and electronically.  Dwight “My Liege” Sullivan will remember, but won’t tell, such a case – McGuinness., 35 M.J. 149 (N.M.C.M.R. 1992); actually this would be when DMLS and I first “met.”

Now it is called “electronic spillage.”  Interesting, just keeping up with the times.

Navy Times reports:

Army Times reports:  A Joint Base Lewis-McChord soldier convicted in the deaths of three Afghan civilians last year is backing away from an earlier statement that one of his superiors explicitly approved the first killing.

WAVY.com reports:  Crew members of the Coast Guard Cutter Venturous engaged in clandestine hazing in the berthing areas of the ship between summer 2007 and winter 2009, according to a two-year investigation by the Coast Guard.

North County Times reports:  A Camp Pendleton Marine convicted of leading the kidnapping and slaying of an Iraqi man in 2006 has been recommended for parole by officials at Miramar[.]   [B]rig officials at Miramar voted unanimously in favor of granting parole to Sgt. Larry Hutchins III, who has been behind bars for much of the last five years.  Hutchins’ case now goes to the Naval Clemency and Parole Board in Washington, which is scheduled to consider his case on July 13.

The US Supreme Court has decided Bullcoming.  Surrogate testimony is no good.

The question presented is whether the Confrontation Clause permits the prosecution  to introduce a forensic laboratory report containing  a testimonial certification—made for the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.  We hold that surrogate testimony of that order does not meet the constitutional requirement.  The accused’s right is to be confronted with  the  analyst who made the certification, unless that analyst is unavailable at trial, and the accused had  an  opportunity, pretrial, to cross-examine that particular scientist.

The US Supreme Court acknowledges what others refuse to acknowledge.  There is the potential for human error, even when using GS/MS equipment.  Slip op. at 4 (with footnotes [n.1] to support what we all know, or should know).

Army Times reports:  The director of the Army Substance Abuse Program at Carlisle Barracks is on leave pending further action after his arrest on cocaine distribution charges.

In Mil. R. Evid. 1102, any amendment to the Federal Rules of Evidence come into effect in courts-martial 18 months after their effective date, absent action to the contrary.  I have not seen anything on Fed. R. Evid. 502(d), within the Joint Service Committee or other DoD organ.  The federal rule becomes effective 1 December 2011.

A piece in the New York Law Journal has this comment:

Enacted in 2008, Federal Rule of Evidence 502(d) permits a federal court to order that a "privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other Federal or State proceeding.

In United States v. Olguin ___ F.3d ___ (5th Cir. 2011), the court determined that certified business records were properly admitted where the documents had been provided the defense about six months before trial and the prosecution gave written notice five days before trial of the intent to offer under Fed. R. Evid. 902(11).

Thanx, federalevidencereview blog.

Many Navy bulkheads have that stuck up somewhere in jest.

But, as Professor Berman reports, Salon has a piece about a new book authored by Peter Moskos, “In Defense of Flogging.”

Navy Times reports: An officer fired from command of a mine countermeasures ship two years ago after a bruising inspection has won an appeal, a Navy spokeswoman confirmed, in what might be the first case in decades of a firing being overturned.

North County Times is reporting the indefinite delay of United States v. Wuterich, due to “wrangling” over lawyers.

Washington Blade reports:  A Senate defense panel late Thursday approved major Pentagon budget legislation lacking anti-gay provisions found in the House version of the bill, although questions remain on whether amendments related to same-sex marriage or “Don’t Ask, Don’t Tell” could come up on the Senate floor.  Additionally, the Senate version of the fiscal year 2012 defense authorization bill has language repealing Article 125 of the Uniform Code of Military Justice — the long-standing military law classifying consensual sodomy for both gay and straight service members as a crime.

MetroWeekly reports:  According to Servicemembers United, which issued a news release about the [Senate] bill this morning, the bill "contains none of the reactionary and distracting amendments related to the repeal of the ‘Don’t Ask, Don’t Tell’ law that were inserted into the House version of the bill, and also would repeal the outdated and widely ignored prohibition on sodomy between consenting adults."

How often does the prosecution proffer evidence and then when challenged make a formulaic and broad talismanic incantation of “admissibility.”   (Or according to the M-W dictionary: trying to produce a miracle by incantation.)

When the defense objects to certain evidence or testimony it is perfectly proper for the prosecution to say Mil. R. Evid. 404(b), or 803(1).  However, you must close them down after that, in a members case.  Don’t let them get past the initial proper incantation by arguing admissibility in front of the members.  You just let them put one over and make the point to the members even if the judge rules in your favor.  Don’t forget that it’s almost impossible to throw a skunk into the members box and tell them not to smell it.

So what happens when the military judge then asks for reasons the evidence or testimony is admissible.  Commonly the prosecutor will continue the talismanic incantation, for example:  “it’s evidence of intent or motive,” or “it’s a excited utterance.”  Maybe.  But they have to do more and you should make them do more than recite the rule.  Make them be specific on how the evidence makes the point, how it is relevant, and how it is not barred by application of Mil. R. Evid. 403.  Specificity is required.