Court-Martial Trial Practice Blog

Humor in uniform

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

A little off topic, but heck, it’s funny.

Two Philadelphia police officers have been charged with criminal conspiracy, robbery, kidnapping, unlawful restraint, false imprisonment, theft, and other related charges, according to officials.

Sean Alivera, 31, and Christopher Luciano, 23, allegedly robbed a supposed drug dealer of 20 pounds of marijuana with a street value of $24,000 as well as $3,000 in cash. It turns out that the man they thought was a drug dealer was actually an undercover officer.

First CAAF opinion for the term

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

United States v. Savard.

We granted review to determine whether the military judge erred by failing to hold defense-requested pretrial hearings before ruling on Appellant’s written motions. We hold that, when one of the parties so requests, Rule for Courts-Martial (R.C.M.) 905(h) requires that the military judge hold a hearing on a written motion. (Emphasis added.)

Note in United States v. Jones argued this week one of the issues was the military judge making decisions in an R.C.M. 802 session; a procedure that is not allowed unless the parties consent. In a similar vein to Hutchins, the lawyers and the judge made decisions affecting the accused of which the accused was not made aware, and now the government says that the accused waived the issue.

More delays in Wuterich?

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

Misc. No. 11-8009/MC. Frank D. WUTERICH, Appellant v. David L. Jones, Lieutenant Colonel, United States Marine Corps, in his capacity as Military Judge, and United States, Appellees. CCA 200800183. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

New Army Lawyer

November 8, 2010 | The Law Office of Philip D. Cave

The September Army Lawyer is online.

There are five articles of interest to MJ practitioners.

Army Review Boards and Military Personnel Law Practice and Procedure, this is by Jan Serene, he is a master of these issues so civilian practitioners can gain some good insight here.

False confessions in the spotlight

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

Thanks to Sentencing Law & Policy:

PBS Frontline has been giving lots of attention to criminal justice systems this fall. . . . This week Frontline will broadcast a new documentary "The Confessions," which examines the case of the "Norfolk Four" involving a quartet of Navy men who were wrongfully convicted after being coerced into giving false confessions.

A preview is at this link.

Ramrod Five/Stryker Brigade sitrep

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

Lexington Herald-Leader reports:

Staff Sgt. Calvin Gibbs’ big talk about killing Afghan civilians and getting away with it made him stand out when he joined a new platoon at an Army base in southern Afghanistan a year ago, according to written statements from his comrades.

Some of his Stryker platoon mates from Joint Base Lewis-McChord near Tacoma, Wash., told investigators they didn’t know what to make of him. They thought he must be kidding.

Up periscope

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

Navy Times reports:

The former executive officer of an amphibious ship that lost a sailor during a 2009 small-boat operation that went awry was found not guilty of negligence by a six-member military jury here Friday night.

Seattle Times reports:

Yes, a LTC Lakin post

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

Here courtesy of Obama Conspiracy Theories is the Congressional Research Service legal opinion on, well . . . . . . ..

Members of Congress Memo–What to Tell Your Constituents in Answer to Obama Eligibility Questions

Up periscope-USS SAN ANTONIO trial

November 4, 2010 | The Law Office of Philip D. Cave

Pilotonline reports that the court-martial for the former XO of the USS SAN ANTONIO is underway at Norfolk.

Navy Lt. Cmdr. Sean Kearns’ court-martial on a charge of negligence in his duties as executive officer of the ship San Antonio began Monday – but he’s not the only one on trial.

The proceeding – related to the death of a sailor during a deployment last year – could give the already bruised San Antonio ship program yet another black eye. . . .

A quick reminder for “documents” cases

November 4, 2010 | The Law Office of Philip D. Cave

My good friend Bill Cassara and I have done a lot of BAH/TCS fraud cases at court-martial under the UCMJ over the years. Typically the case involves a lot of documents from DFAS. The prosecution then calls a witness from DFAS to lay a foundation for the documents and then has the witness testify as to what the documents mean in terms of monies claimed and paid compared to the legal entitlements. Because these documents are of many pages the witness typically prepares a chart which summarizes the documents and the bottom lines. There is nothing wrong with that so long as the underlying documents are admissible (usually as business records and documents prepared and submitted by the accused), the chart is an accurate representation of the documents, and the witness who prepared the chart or summary is available for cross-examination.

The case of United States v. Hemphill, 514 F.3d 1350 (D.C. Cir. Feb. 8, 2008) (Nos. 06-3088, 06-3089, 07-3016), noted by federalevidence.com, reminds us of this point.

Cross-examination might expose errors or inconsistencies in the chart. At which point the parties can refer to the original documents if necessary. Assuming the errors or inconsistencies are identified and cross-examined on the testimony is then judged as to its weight not admissibility.