Court-Martial Trial Practice

Courtesy of LawProfsBlog.

The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment ‘Search and Seizure’ Doctrine

Thomas Y. Davies
University of Tennessee College of Law
Journal of Criminal Law & Criminology, Vol. 100, No. 3, pp. 933-1041, 2010
University of Tennessee Legal Studies Research Paper No. #137

Here is one of those occasional outside the mjWire cases of interest.

The police responded to a 911 call about a “break-in” and a shooting. They found the defendant outside the house, confused and under the likely influence of drugs. The did a “protective sweep” on exigency and found drug stuff. They proceeded to search. The USMJ recommended suppression for lack of a warrant, and the USDJ agrees. The proper recourse was to get a search warrant and not rely on a alleged consent from a man they admit was hallucinating. Motion to suppress granted for lack of a warrant. United States v. Einerson, 2011 U.S. Dist. LEXIS 15633 (D. Neb. February 16, 2011).

Thanks to fourthamendmentblog.

Courtesy of LawProfsBlog:

Vazquez on Advising Noncitizen Defendants on Immigration Consequences of Conviction

Yolanda Vazquez (University of Pennsylvania Law School) has posted Advising Noncitizen Defendants on the Immigration Consequences of Criminal Convictions: The Ethical Answer for the Criminal Defense Lawyer, the Court, and the Sixth Amendment (Berkeley La Raza Law Journal, Vol. 20, p. 31, 2010) on SSRN.

This Article discusses the tension between the Sixth Amendment analysis by courts on the issue of immigration consequences of criminal convictions and the moral and ethical duties that an attorney owes his noncitizen client. Under the majority of jurisdictions, federal circuit and state courts hold that there is no duty to advise on this issue because they are deemed to be “collateral”. However, a growing number of these jurisdictions have begun to find a Sixth Amendment violation for failure to advise. These jurisdictions have created a Sixth Amendment duty only when: 1) the attorney “knew or should have known” the client was a non-citizen; or, 2) the attorney gave misadvice. However, these holdings create perverse incentives for attorneys to implement a Don’t Ask/Don’t Tell policy by allowing an attorney to remain silent and fail to investigate immigration status to prevent a Sixth Amendment violation on information that a noncitizen may deem more important than the criminal sentence as well as creating lines in the responsibilities an attorney owes his client based upon stereotypical perceptions of citizenship.

United States v. Lewis.

WHETHER APPELLANT’S RIGHT TO DUE PROCESS WAS VIOLATED WHEN THE TRIAL COUNSEL ASKED A DEFENSE EXPERT WHETHER HE FOUND EXCULPATORY EVIDENCE, AND ARGUED TO THE MEMBERS THAT THE DEFENSE EXPERT FAILED TO FIND EVIDENCE SUGGESTING ANYONE OTHER THAN APPELLANT COMMITTED THE OFFENSES.

A favorite blog – federalevidencereview – has this:

Second Circuit confirms that statements made by a co-conspirator to an undercover agent may be admitted without violating the Confrontation Clause where the co-conspirator “was unaware that he was speaking to agents for the government or that his statements might later be used at a trial,” in United States v. Sabir, _F.3d _ (2d Cir. Feb. 4, 2011) (Nos. 07-5531-CR CON, 07-1968-CR L)

Under what circumstances can co-conspirator statements under FRE 801(d)(2)(E)made to an undercover agent, which are obtained during an ongoing investigation, be admitted without violating the Confrontation Clause under the Sixth Amendment. The Second Circuit recently relied on a prior decision of then-Circuit Judge Sotomayor to address this issue.

The Agenda for the CAAF Judicial Conference is here.

The agenda is back closer to mission and less of the interesting but arguably irrelevant topics.  Of special interest is Prof. Berman from Sentencing Law & Policy.  I read his excellent blog everyday.  He’s been talking for some time now about the sentencing issues relating to CP cases and the trend among federal judges to go below guidelines on a possession only case, reserving the stiffer sentences for those making the CP or using CP while commiting a sexual assault.  He’s also commented on the Sentencing Guidelines Commission considering lowering the minimums for certain CP related cases.  And of course there’s the Sexting issue.

We all need PTSD/TBI for defense of cases, especially clients who’ve been deployed.

Yesterday the Navy Office of the Judge Advocate General’s Criminal Law Division recommended that trial counsel continue to request that the military judge give the Benchbook instruction in Article 120(c)(2) cases.  The recommendation stated that CAAF’s decision in Prather “does not change the landscape for Navy prosecutors as drastically as one might expect.”  Code 20 asserted that continuing to request the Benchbook instruction is the recommendation of all five services’ Criminal Law Divisions.

Code 20 also noted that CAAF’s recent decision in Prather gives the Joint Services Committee on Military Justice “more leverage in its attempts to convince Congress to amend Article 120, UCMJ.”

H/T Marcus Fulton on CAAFLog.

I posted the other day about the ongoing passionate dispute about the existance of SBS as a valid “diagnosis.”  Here is an NPR piece with a little more perspective. 

MELENDEZ-DIAZ ACQUITTED.

Courtesy of Professor Friedman counsel in several confrontation cases including the upcoming Bullcoming.

Boston.com reports:

United States v. Edwards.  Good case for a refresher on custody and confinement and their distinctions.

Whether an accused is guilty of escape from custody or escape from confinement logically depends upon the accused’s status at the time of the escape.  Article 95, UCMJ, 10 U.S.C. § 895 (2006).  We granted review in this case to determine whether the military judge erred in accepting Edwards’ guilty plea to escape from confinement.  We hold that Edwards was in custody rather than confinement at the time of his escape and his guilty plea to escape from confinement was therefore not provident.

Note to defense counsel.  If the accused is brought to your office while in custody or confinement for the purpose of case preparation (which is preferred), make sure that any time the client is outside your presence that you make a positive hand-over to the escorts.  That not only ensures the client doesn’t run, as in Edwards, but it’s also protective for the escorts who have a duty to hold on to the client.  Also, if you get a situation like Edwards that might discourage commands from cooperating and cause them to make you go to the Brig for clients meetings.