Court-Martial Trial Practice Blog

New CCA opinions

November 12, 2010 | The Law Office of Philip D. Cave

Navy.

1. United States v. Curry. This is a BAH case.

The Government proceeded on a theory of a fraudulent marriage as a basis to commit larceny by trick.
The court held oral argument in this case and specified two additional issues to the parties.2 Additional pleadings were later filed. After carefully considering the record of trial and the pleadings of the parties, we decide this case based solely on the assigned error and conclude that the evidence was factually insufficient to sustain the finding of guilt as to the charge of larceny, either on the proffered theory of larceny by trick or under a possible theory of wrongful withholding.

Sound familiar?

November 12, 2010 | The Law Office of Philip D. Cave

KPLU News reports.

Key pieces of evidence were lost or never collected in the case of five Washington-based soldiers charged with murdering Afghan civilians. That emerged Tuesday in an evidentiary hearing against the alleged ringleader – Staff Sgt. Calvin Gibbs.

MAJ Hasan update

November 11, 2010 | The Law Office of Philip D. Cave

Courtesy of Army Times, here is a link to, “Fort Hood Army Internal Review Team: Final Report.”

The confessions

November 11, 2010 | The Law Office of Philip D. Cave

The PBS Frontline special, “The Confessions” about false confessions and the Norfolk Four is now available.

Up periscope 92

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

Stars & Stripes reports.

A U.S. soldier will spend more than two years in prison after a military judge found him guilty in a court-martial Tuesday of throwing a crowbar that struck a German motorcyclist in the head.

Stars & Stripes reports.

LTC Lakin’s latest

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

Thanks to a jab from RealityCheck. Let’s parse the current defense information release from LTC Lakin’s defense counsel.

His previous civilian attorney complicated his case and is partially responsible for two of these charges by advising LTC Lakin to refuse to report to his superior officer.

I posted a while back about the TMLUTB defense. I think the two charges referred to above are the harder on which to establish a TMLUTB defense. I think it would be harder to convince members that the order to report needed the advice of counsel. But . . . .

AFCCA on unconditional waiver of motions

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

United States v. Brown is a good reminder of waiver of motions in pretrial agreements.

The typical waiver is that the accused will “waive all waivable motions.” This seems something of an oxymoron. The provision is consistent with the idea that all nonjurisdictional motions are waived on a guilty plea unless there is a conditional waiver. The court cites United States v. Bradley, 68 M.J. 279 (C.A.A.F. 2010)

This is an area potentially ripe for IAC in pretrial negotiations and advice. In this case,

Up periscope 91

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

Army Times reports.

The defense does not plan to present any evidence when a military hearing resumes next week for the Army psychiatrist charged in last year’s deadly Fort Hood shootings, the lead defense attorney said Tuesday.

John Galligan said the government had offered “no surprises” in presenting its case against Maj. Nidal Hasan during two weeks of testimony in October.

Post Padilla-Miller

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

Thanks to Sentencing Law & Policy here is a paper that raises some thoughts on IAC for pretrial advice to clients. As we know we won’t get anything solid on that from CAAF a la immigration because Denedo’s case is over. But, . . . .

Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts

Vanderbilt Law Research Paper Series
Vanderbilt University Law School
Nancy J. King
Vanderbilt Law School
Gray Proctor
affiliation not provided to SSRN
Federal Sentencing Reporter, Volume 23, Issue 3 (Feb 2011)

Impeachment

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

Professor Colin Miller uses an Alabama case to remind us that a prior misdemeanor conviction is not admissible under Rule 609(a).

Under this Rule, then, it is clear that a party cannot impeach a witness through evidence that the witness has a prior misdemeanor conviction for a crime not involving dishonesty or false statement. But does a witness open the door for such impeachment by testifying that he only completed the Eleventh grade if the reason that he did not complete his high school education was the conviction? According to the recent opinion of the Court of Criminal Appeals of Alabama in Beemon v. State, 2010 WL 4380238 (Ala.Crim.App. 2010), the answer is "no."

The prosecution had argued that the accused’s testimony had “opened the door.” The appeals court also rejected that basis for admission. Of interest though, for trial counsel, and for defense counsel to be looking out for, was this part of the court’s opinion.