Court-Martial Trial Practice

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.

Bullcoming’s Reply Brief is here courtesy of Prof. Friedman.

Marine Corps Times reports:

More than six years after a Marine corporal was charged with desertion for allegedly faking his own kidnapping in Iraq, his family is once again making rumblings about clearing his name.

The effort, however, wouldn’t play out in military court. Instead, the Utah family of Wassef Ali Hassoun contacted a Los Angeles publicist in search of a $1 million book and movie deal.

United States v. Prather.

We granted review to address the burden shifts found in Article 120(t)(16), UCMJ, when an accused raises the affirmative defense of consent to a charge of aggravated sexual assault by engaging in sexual intercourse with a person who was substantially incapacitated.  We conclude that the statutory interplay between the relevant provisions of Article 120, UCMJ, under these circumstances, results in an unconstitutional burden shift to the accused.  In addition, we conclude that the second burden shift in Article 120(t)(16), UCMJ, which purports to shift the burden to the government once an accused proves an affirmative defense by a preponderance of the evidence, constitutes a legal impossibility.