Court-Martial Trial Practice Blog

Discovery

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

I have always taken the view that disclosure of bad information about witnesses is a self-executing duty on trial counsel. I make this point because trial counsel often refuse to look into the background of it’s witnesses until the MJ orders that.

The military judge properly concluded the government “had an obligation to provide that CID report of investigation to the [d]efense, even absent a discovery request of any kind.” and thus violated its disclosure duties under the United States Constitution and the UCMJ.See UCMJ art. 46; Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004); R.C.M. 701.

I think ACCA agrees.

Don’t try this in the military

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

They will get you under Article 134, UCMJ.

Appeals Court Frees Ex-Principal: Panel rules that altered photos were not child pornography because the nude bodies were those of an adult.

A three-judge panel of the Second District Court of Appeal in Lakeland ruled Friday that photographs he had were not child pornography because the nude bodies shown were those of an adult.

Clemency and parole

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

PTA provisions depriving an appellant of parole and clemency consideration under generally applicable procedures are unenforceable under R.C.M. 705(c)(1)(B). United States v. Tate, 64 M.J. 269, 272 (C.A.A.F. 2007).

Big Pardon news

December 3, 2010 | The Law Office of Philip D. Cave

The big news in the presidential pardons world is that President Obama has finally granted nine pardons. Pardon Power blog reports:

682 days into his presidency, Barack Obama has finally discovered the clemency power by granting 9 pardons.

One of the nine is a military case from 1994 in which the accused was sentenced to 24 months confinement.

Double jeopardy?

December 2, 2010 | The Law Office of Philip D. Cave

Everyone remembers Pierce and Pierce credit – right. DMLHS at CasaCAAFLog has found this interesting opinion from the federal district court.

This case is before the court on defendant’s motion to dismiss (no. 6). At issue is whether the United States government, consistent with the constitutional requirement of due process, may prosecute a military servicemember in a civilian court for a crime committed on a military installation when the servicemember (a) has already received “non-judicial punishment” pursuant to Article 15 of the Uniform Code of Military Justice, 10 U.S.C. § 815 (“Article 15”); (b) has thereby waived his right to trial by court martial; (c) has not been told that he would be prosecuted in a civilian court anyway; and (d) could have foreclosed both non-judicial punishment and the civilian prosecution by asserting his right to a court-martial. While defendant argues several grounds for dismissal, the court grants the motion on the ground that under the circumstances presented here, this civilian prosecution violates defendant’s right to due process of law under the Fifth Amendment to the Constitution.

Anticipate some change in procedures at Quantico.

LTC Lakin sitrep

December 2, 2010 | The Law Office of Philip D. Cave

Here is a new piece of information from wing nut daily:

Lieutenant Colonel Terrence Lakin, a distinguished Army flight surgeon, is "certain" to be convicted of disobeying orders, according to his lawyer, Neil Puckett.

Notice he does not apparently address the missing movement. Maybe the “specific” movement issue is a winner? See below.

CAAF decisions

December 2, 2010 | The Law Office of Philip D. Cave

CAAF has decided three cases, Blazier of course being one of them. I was the trial defense counsel in the case so no comment from me on the case so far. Here is the brief for petitioner in Bullcoming v. New Mexico. Professor Friedman has posted this at his excellent confrontationblog site. I had anticipated CAAF might await a decision in Bullcoming. But, in discussions with DMLHS last night it appeared that Bullcoming wouldn’t likely be argued until early 2011, and there are a potential lot of military cases building up.

United States v. Staton decided this issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN ADMITTING EVIDENCE THAT APPELLANT MAY HAVE ATTEMPTED TO KILL OR INJURE THE ORIGINAL TRIAL COUNSEL.

Federal Rule of Evidence change

December 1, 2010 | The Law Office of Philip D. Cave

An important change to the Federal Rules of Evidence begins today. That means, absent Presidential action, the rule will take affect in the military no later than 18 months from now. This is a significant change requiring the prosecution to corroborate statements against penal interest.

On December 1, 2010, a new amendment to the Federal Rules of Evidence takes effect. The rule concerns the admission of statements against interest under FRE 804(b)(3) has been amended so that the corroborating circumstances requirement for admission of a declaration against interest applies to statements against penal interest introduced by the government as well as those by the defendant in criminal cases. This requirement previously applied to statements introduced by the defendant.

See Mil. R. Evid. 1102. Thanks to FederalEvidenceReview for the reminder.

FOIA or not

December 1, 2010 | The Law Office of Philip D. Cave

The Supremes will here an important FOIA case today, Milner v. Dept. of the Navy. Here is a link to the SCOTUSBlog information.

LTC Lakin voir dire

December 1, 2010 | The Law Office of Philip D. Cave

A thought as we get closer to trial. As the Greeley Gazette article and the current postings at such places as PostandEmail, safeguardourconstitution, and wing nut daily, demonstrate there is a great deal of criticism about Judge Lind. Some of that criticism has been harsh and excessive. Other than a statement from LTC Lakin’s lawyer that the judge was right, there has been no public disavowel from LTC Lakin. I don’t know he required to do so, except in an effort to get clemency. But . . . .

Will the new defense counsel voir dire the military judge and challenge her or ask her to recuse herself? If this is to be a members trial, then I think she can clearly say the right words in response to a voir dire and not recuse herself and not to have been found in error on appeal. But, what if LTC Lakin elects a judge alone trial? Maybe that’s different (unless it is part of a PTA)? Implied bias can be a reason to challenge a military judge just as much as members. Remember the Marine case from some years ago, where the SJA got heavily involved in trying to remove the MJ because of her alleged relationship with the defense counsel.