Court-Martial Trial Practice Blog

LTC Lakin

December 10, 2010 | The Law Office of Philip D. Cave

There is an increasing disconnect between the “birther” movement and LTC Lakin’s case. Hopefully that “wishy washy” attorney representing him will make that clear when pleading for mercy.

The Post&Email has been following LTC Lakin and most of the other presidential eligibility cases. Recently they ran a piece about some “demonstrations” in Arizona in favor of Congress stepping in to stop the court-martial. A recent comment had this to say which may qualify for a humor in military justice posting.

I very much hope that Miss Taitz is going to attend and somehow convinces LTC Lakin to fire that wishy washy attorney Neal Puckett and let her take over the case. I have listened to Puckett on a couple of radio shows and he is already giving up and saying Lakin will be found guilty. He will not even say that Obama is not eligible. Why Lakin hooked up with this loser I will never know. He must be getting bad advice from Ms Hemenway or Gen. Vallalley.

Behenna and more

December 10, 2010 | The Law Office of Philip D. Cave

In September 2010, USA Today published the first of several articles about prosecutorial misconduct. In that article they discussed Nino Lyons who was convicted in a case where the prosecutors:

covered up evidence that could have discredited many of Lyons’ accusers. They never revealed that a convict who claimed to have purchased hundreds of pounds of cocaine from Lyons struggled even to identify his photograph. And they hid the fact that prosecutors had promised to let others out of prison early in exchange for their cooperation.

As we’ve discussed both types of information must be disclosed.

LTC Lakin

December 9, 2010 | The Law Office of Philip D. Cave

There’s a second part which I’m having a little trouble uploading right now. So, go to the YouTube and it should follow on from there.

Note that in the second part Neal is soliciting funds NOT for Lakin’s defense, but for his life after the military.

Harmless error

December 7, 2010 | The Law Office of Philip D. Cave

Revising Harmless Error: Making Innocence Relevant to Direct Appeals

Helen A. Anderson
University of Washington – School of Law
October 27, 2010

Abstract:
The direct appeal of a convicted defendant is almost never concerned with actual innocence. The system seems to privilege procedural claims, and it is extremely difficult, if not impossible, to get an appellate court to take seriously a claim of factual error such as the claim that a witness lied or was mistaken. The disconnect between appeals and actual innocence is ironic, since most jurisdictions provide funding for direct appeals, but not for collateral attacks where claims of actual innocence can be litigated. This article focuses on one aspect of appellate review that could in theory be made more likely to provide relief to the innocent through more reliable fact-finding: the harmless error analysis. It is in assessing whether an error was harmless that the courts come closest to thinking about innocence on appeal. According to the Innocence Project, the leading cause of wrongful convictions is eyewitness misidentification, followed by "unvalidated/improper forensics," false confessions, and informants. Current harmless error analysis runs contrary to these findings, giving undue weight to precisely the kind of evidence often implicated in wrongful convictions, and not sufficiently considering the impact of erroneously admitted evidence on the jury. This article looks at the history of harmless error analysis, how it is applied in cases where the likely causes of wrongful conviction are implicated, and what changes can be made to reinvigorate harmless error so that courts take seriously the possibility of innocence given what we have learned through DNA exoneration’s.

LTC Lakin

December 7, 2010 | The Law Office of Philip D. Cave

You will know that Neal Puckett was on the Peter Boyles radio show yesterday. The show continued today with Gen Valleley as the guest. This was (is?) a defense witness whose presence was litigated at the Article 39(a), UCMJ, session.

According to Gen Valleley the court-martial process is corrupt, Military Judge Lind and the generals above her should be court-martialed for allowing the corruption. He describes Military Judge Lind as the “Kangaroo court judge,” in this “kangaroo court.”

Apparently he’s trying to “light a fire” under the current defense team to go full NBC.

MAJ Hasan sitrep

December 6, 2010 | The Law Office of Philip D. Cave

Army Times reports:

The Army psychiatrist charged in last year’s deadly Fort Hood shooting rampage is to have a mental evaluation this week, his attorney said Monday.

Maj. Nidal Hasan will be evaluated in the county jail near the Texas Army post as early as Tuesday by a three-member military mental health panel, said his lead attorney, John Galligan.

Humor in military lawyering

December 6, 2010 | The Law Office of Philip D. Cave

The Columbian reports:

Some people were taking the job of soldiering a bit casually on Dec. 6, 1941, says a Washougal veteran of World War II.

It took one day to change everything.

Discovery, anew

December 5, 2010 | The Law Office of Philip D. Cave

I posted the other day about discovery, the appellate courts are seeing a number of cases about discovery issues. ACCA hears oral argument in the Behenna case which presents the question of trial counsel’s failure to comply with Brady/Bagley/Giglio/Article 46 in the context of a motion for mistrial and a motion for new trial. As I have noted before, the biggest discovery issues are impeachment evidence and evidence that is favorable to the accused. Trial counsel don’t seem to have much problem disclosing all the bad stuff against the client, it is the good stuff favorable to the client that becomes the issue.

In the Behenna case the defense was semi fortunate.

[Tip? if a prosecution witness is suddenly no longer a witness, call them and ask why.]

In the court of adverse administrative actions

December 5, 2010 | The Law Office of Philip D. Cave

Not completely off topic, the Army Times reports:

Soldiers are dangerously starving themselves, gobbling diet pills and laxatives — even going under the knife in costly liposuction surgery — all to meet the Army’s weight standards and avoid losing their careers.

Up periscope

December 5, 2010 | The Law Office of Philip D. Cave

Military.com reports:

A Navy intelligence specialist stationed at Fort Bragg is in custody after an investigation revealed he allegedly sold top secret documents to an undercover FBI agent posing as a foreign intelligence officer.

Apparently there were two meetings at which approximately four documents were handed over in exchange for a total of $3,000.00.