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.
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.
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!
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.
The other day I had posted about the unauthorized release of the Stryker Brigade Article 32 report and a Coast Guard report on the San Diego Bay incident. My question at the time was an appearing trend of unauthorized releases of Article 32, UCMJ, investigation reports. There is more on the Stryker Brigade case.
The News Tribune reports:
Col. Thomas Molloy found that Spc. Jeremy Morlock should be held accountable for any actions he might have committed. Molloy noted that Morlock was viewed by fellow soldiers “as an effective, reliable, engaged team leader,” rather than the picture painted by defense attorneys of a prescription drug-impaired soldier who was bullied by his squad leader.
Air Force Times reports that:
The court-martial of Airman 1st Class Dustin A. Miller will begin Nov. 8. The security forces patrolman faces charges of attempted murder, aggravated assault with a dangerous weapon, aggravated assault inflicting grievous bodily harm and assault with the intent to commit murder.
See prior postings about the Mackie (Trask) case in regard to jurisdictional issues.
“Now what I want is, Facts.. . . Stick to Facts Sir!” (Charles Dickens, Hard Times, p. 1, Oxford World’s Classics, 1998.)
Evidence may be admissible under Mil. R. Evid. 803(8) as an exception to the hearsay rule. Prof. Colin Miller reminds us that the exception is intended to cover recorded facts, not opinions.
AP reports:
Two women testified at a military hearing Tuesday that they would not have had sex with an airman had they known he was HIV positive, and one said she believed him when he said he wasn’t because he was in the Air Force.
Professor Friedman has put up the transcript of argument in Michigan v. Bryant, a Crawford case.
Despite the political rhetoric LTC Lakin’s case has given us a number of teaching moments or opportunity to refresh on some basic practice principles.
1. Can LTC Lakin change lawyers at this stage. The answer in this case is probably yes. Although technically Mr. Jensen should submit a motion to be released and the new counsel file a notice of appearance.
2. Can LTC Lakin’s get a delay in the trial. Trial is currently set to begin 3 November 2010. The current docket is dated 6 October 2010. There is some question whether or not Neal Puckett or his other counsel are available because of the Wuterich trial ongoing. Also, there would be an issue of giving them an opportunity to prepare for trial. The answer to a continuance request in this case is probably yes, unless the prosecution can show an extraordinary adverse effect on their case by a delay.
CNN has this report on the Morlock Article 32, UCMJ, hearing.
A U.S. soldier accused of killing civilians in Afghanistan should face a court-martial on murder and other charges, an Army officer has recommended.
The recommendation, included in a document obtained by CNN, comes after prosecutors laid out their evidence against Spc. Jeremy Morlock in a hearing last week. Morlock is one of five members of the Army’s 5th Stryker Brigade who have been accused of premeditated murder in a series of incidents between January and May.
Court-Martial Trial Practice Blog
