Court-Martial Trial Practice Blog

New ACCA case

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

ACCA has released an opinion in United States v. Martinez. Here is the first issue:

WHETHER A REASONABLE PERSON WOULD QUESTION THE TRIAL JUDGE’S IMPARTIALITY WHEN A SENIOR MILITARY JUDGE, WHO APPEARED TO HAVE ASSISTED THE GOVERNMENT DURING TRIAL, ENTERED THE TRIAL JUDGE’S CHAMBERS DURING RECESS AND DELIBERATIONS, IN VIOLATION OF APPELLANT’S RIGHT TO DUE PROCESS.

This appears to be an interesting situation of the supervising judge from the gallery seeing some things going wrong with how the judge was conducting the case. The supervising judge ended up communicating to the trial judge initially through trial counsel, in the court-room, while trial was ongoing. The contacts with trial counsel are described as “irregular.”

Blazing moment

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

Thanks to CrimProfBlog here is a link to an interesting post on Grits for Breakfast, with potential for relevance in a court-martial tried under the UCMJ, with examiners from USACIL and DCFL, etc.

There was an astonishing moment yesterday at a breakout session on fingerprint examination at theTexas Forensic Science Seminar, at which Department of Public Safety fingerprint examiner Bryan Strong (who seemed like a really nice guy so I hate to pick on him) was describing how his division implemented the ACEV method of fingerprint examination in ways that may violate the state and prosecutors’ obligations under Brady v. Maryland.

blah, blah.

Military and political activity

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

All service members are encouraged to vote. You can make donations. You can attend political functions, but not in uniform.

Here the Marine Times points out that there are some considerations and limits on political activity.

DoDD 1344.10.

Corrections boards

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

Here’s an interesting piece in the Veterans Today.

REPORT prepared for the State Bar of Texas Annual Meeting, Military Law Committee Correction of Military Records and Judicial Review, has proven to be a shocker, and, should OUTRAGE every veteran ! Why you ask, well hold the phone.

I would suggest this “report” is not news. The writer and presenter is described as follows:

MAJ Hasan sitrep

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

I posted the other day about the defense refusal to cooperate in a scheduled R.C.M. 706 board.

Mr. Galligan’s website now points to this CNN piece. The title of his posting is, “Army Attempts Last Minute Changes to Sanity Board.” The CNN piece makes several observations.

The defense objects to the timing.

legal writing

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

Thanks to Raymond Ward’s the (new) legal writer here is an article about brief (motions?) writing.

Prof. Ken Chestek of the Indiana University School of Law recently conducted a study, trying to determine empirically whether a brief with an element of storytelling is more persuasive or less persuasive than a purely logical, law-driven brief.

He published the results of his study in an article that you can download here. Although (as Prof. Chestek acknowledges) the sample size may be too small to draw definitive conclusions, the study’s results suggest that storytelling makes for a more persuasive brief.

Cross-examination

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

Evan Schaeffer has posted an interesting tip, reminder, on his Trial Practice Tips Weblog. There are two requirements for success in exposing the liar.

First, you must be certain that you can establish that the witness has a "clear-cut motive to fabricate that the jury will understand";

Second, you must be certain that you have at least one "clean substantive line of cross-examination" during which you can establish that the witness probably lied.

MAJ Hasan sitrep

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

Tomorrow begins the Article 32, UCMJ, hearing, prefatory to a general court-martial.

NPR leads with:

Dozens of people will take the witness stand in a military courtroom over the next few weeks to describe the pain of bullets piercing their bodies and the sight of fellow soldiers lying in pools of blood.

LTC Lakin

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

Interesting, someone appears to have received a response to a request for information to APF.

Courtesy of obamaconspiracy.org:

From: Margaret Hemenway
Date: Wed, Oct 6, 2010 at 11:07 AM
Subject: Re: Request from the Safeguard our Constitution Website
To: (——)
(——), LTC Lakin worked with the Foundation over this past wk-end to ensure that our educational efforts continued and there was no disruption even given his retaining new legal counsel- we are making clear that our focus is on strategic communications, his public relations and outreach and mobilization, raising his public visibility over the next few critical weeks with court-martial only weeks away- but we are not providing his legal defense. The most important actions needed now are raising public pressure and awareness of his plight- contacting elected officials on his behalf and spreading the word to others. We are dealing with an entrenched media blockade on his issue and working diligently to surmount it– Thanks for writing- and keep the faith!

In the Supremes

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

SCOTUSBlog notes two new petitions with potential impact on a court-martial practice under the UCMJ.

Title: NIBCO, Inc. v. Rivera
Docket: 10-383
Issue(s): (1) Whether a court of appeals must conduct a comparative juror analysis when reviewing a claim under Batson v. Kentucky, even though the comparative analysis was neither raised before nor considered by the trial court below; and (2) whether a court of appeals that identifies a suspected Batson problem based on a comparative juror analysis never considered by the trial court can vitiate a trial without remanding to allow the trial court to consider the new arguments and evidence in the first instance.

Title: Dunn v. Louisiana
Docket: 10-386
Issue(s): Whether a court’s modification of the three-step Batson v. Kentucky analysis, requiring the defense to prove that its strikes were not motivated by race, while simultaneously requiring it to prove that the state’s strikes were motivated by race, violates the Sixth and Fourteenth Amendments.