Court-Martial Trial Practice Blog

SCOTUSBlog observes

September 29, 2010 | The Law Office of Philip D. Cave

Along with the list of cert. grants, the Court announced a new policy on releasing audio recordings of oral arguments. The Court will now release such recordings at the end of each argument week, much earlier than the current practice for all but a handful of particularly high-profile cases. As Lyle Denniston reports for SCOTUSblog, the same-day release of high-profile argument recordings will be discontinued under the new policy. The Washington Post, the Blog of LegalTimes, NPR’s The Two-Way blog, Broadcasting & Cable, the Associated Press (via the Washington Post), and Jonathan Adler of the Volokh Conspiracy all take note of the policy change. While C-SPAN’s president is not completely satisfied with the shift, the Volokh Conspiracy’s Orin Kerr is “delighted” that “Supreme Court geeks” will be able to more readily recognize “the flavor and tone of the questions.”

Bullcoming sitrep 1

September 29, 2010 | The Law Office of Philip D. Cave

Here is an observation by federalevidence.com:

One issue raised by the new case concerns whether a majority of the Court still supports the Confrontation Clause analysis established under Crawford v. Washington in 2004, and Melendez-Diaz v. Massachusetts in 2009. Two Justices who voted in the majority (John Paul Stevens and David H. Souter) have since retired. The five majority votes in Melendez-Diaz v. Massachusetts included author Justice Antonin Scalia and Justices John Paul Stevens, David H. Souter, Clarence Thomas (who also filed a concurring opinion), and Ruth Bader Ginsburg. The four dissenting included Justice Kennedy, who authored the dissent, and Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Samuel Anthony Alito, Jr.. It is unclear whether a new majority will be formed on the Confrontation Clause analysis and how the newest Justices (Sonia Sotomayor and Elena Kagan) will vote on Confrontation Clause issues.

LTC Lakin sitrep

September 29, 2010 | The Law Office of Philip D. Cave

Humor in military lawyering is good. Humor is good. Standby for a comment from DMLHS tonight.

In thinking about why the case would be delayed to 3 November 2010 there were all kinds of ideas floating around, some ideas being of a conspiratorial nature. I had missed the piece noted by Reality Check (thanks!). Anyway, I thought the first place to go would be be docket – but first a digression on the piece of reporting Reality Check caught.

The military judge did delay the start of the trial for a month to give the defense more time to ask the court of appeals for help. (WUSA9 — http://goo.gl/Am1Q)

Post-trial and SOR

September 29, 2010 | The Law Office of Philip D. Cave

Daily Commercial reports:

To police Chief Ed Nathanson, it doesn’t matter where you’ve been convicted as a sex offender or predator.

It only matters that you’ve been convicted.

Up periscope

September 28, 2010 | The Law Office of Philip D. Cave

Washington Post reports:

A U.S. soldier in Iraqis accused of fatally shooting two other American service members and injuring a third after an argument in Iraq’s Anbar province last week, the military said.

WRAL.com reports:

Post-trial

September 28, 2010 | The Law Office of Philip D. Cave

Army Times reports.

A regional prison is opening at Fort Leavenworth, combining the operations of military prisons elsewhere in the United States.

The Joint Regional Confinement Facility will be operated by the Army Corrections Command. It’s located on the northeast Kansas post near the U.S. Disciplinary Barracks, the military’s maximum-security prison.

Another potential SCOTUS grant

September 28, 2010 | The Law Office of Philip D. Cave

The U. S. Supreme Court has granted certiorari in Kentucky v. King.

QUESTION PRESENTED:
Police officers entered an apartment building in hot pursuit of a person who sold crack cocaine to an undercover informant. They heard a door slam, but were not certain which of two apartments the trafficker fled into. A strong odor of marijuana emanated from one of the doors, which prompted the officers to believe the trafficker had fled into that apartment. The officers knocked on the door. They then heard noises which indicated that physical evidence was being destroyed. The officers entered the
apartment and found large quantities of drugs. The Kentucky Supreme Court held that this evidence should have been suppressed, ruling that (1) the exigent circumstances exception to the warrant requirement did not apply because the officers created the exigency by knocking on the door, and (2) the hot pursuit exception to the warrant requirement did not apply because the suspect was not aware he was being pursued. The two questions presented are: 1. When does lawful police action impermissibly "create" exigent circumstances which preclude warrantless entry; and which of the five tests currently being used by the United States Courts of Appeals is proper to determine when impermissibly created exigent circumstances exist? 2. ~~Does the hot pursuit exception to the warrant requirement apply only~~

Thanks to crimeandconsequences.

More on Crawford, Melendez-Diaz, and possibly Blazier

September 28, 2010 | The Law Office of Philip D. Cave

United States v. Blazier was argued at CAAF and you can hear the oral argument at this link.

The U. S. Supreme Court has granted certiorari in Bullcoming v. New Mexico. Courtesy of CAAFLog here is the granted issue:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform the laboratory analysis described in the statements.

LTC Lakin sitrep 9

September 28, 2010 | The Law Office of Philip D. Cave

NIMJ was able to send Charlie Fowler to monitor todays Article 39(a), UCMJ, session.

1. Trial is continued until 4 November 2010 from 13 October 2010. Not sure of the reason. It appears Mr. Jensen asked the judge to hold the case “in abeyance” pending resolution of an (untimely?) writ which has been filed with NMCCA. According to Charlie the defense said the reason for the potentially untimely filing was “for reasons I can’t get into right now[.]” Huuuuuuuum, this has resonance. I think I’ll try this one in a couple of weeks. (Note to DMLHS, this citation to authority has to be on the top ten this year.)

2. Unsurprisingly to those familiar with military justice the judge ruled the orders to be legal.

LTC Lakin sitrep 8

September 28, 2010 | The Law Office of Philip D. Cave

WorldNetDaily reports:

Disagreement arose todday among supporters of Lt. Col. Terrence Lakin, the Army doctor facing military court-martial for refusing orders to deploy to Afghanistan after questioning Barack Obama’s constitutional eligibility to be president.

A group of retired military officers organized as the Veterans Council and the United States Patriot Union in Sheridan, Wyo., issued a white paper calling on Lakin’s legal defense team to change strategy.