Court-Martial Trial Practice Blog

Harassing the defense?

September 18, 2010 | The Law Office of Philip D. Cave

We regularly get reports from clients and their families about being harassed by NCIS, CID, CGIS, OSI. In general what the client is reacting to is the law enforcement fishing expedition. During a law enforcement fishing expedition. This law enforcement fishing expedition is where they go around to friends and neighbors telling them what a bad person the client is and seeking more bad information. So what happens when the defense starts to get effective in their own investigation?

Here is a North County Times report:

The American Civil Liberties Union has filed a lawsuit against the Naval Criminal Investigative Service, its agents, Camp Pendleton military police and a San Diego Marine staff judge advocate on behalf of a North County woman who alleges they violated her constitutional rights with intimidation and harassment.

Relief for cause

September 18, 2010 | The Law Office of Philip D. Cave

There has been some reporting that the number of Detached for Cause (DFC, Relief for Cause) in the Navy are up this year over past years. Here are some more. Actually I almost missed one. I had this ready to post last night and didn’t so today I was able to read:

A Navy Times report entitled “Navy sacks three leaders in one day” (fortunately for them no court-martial that we know of):

In the span of 24 hours, the Navy has fired a commanding officer, executive officer and a command master chief.

CrimProfBlog post

September 17, 2010 | The Law Office of Philip D. Cave

Mary D. Fan (University of Washington – School of Law) has posted The Police Gamesmanship Dilemma in Criminal Procedure (UC Davis Law Review, Forthcoming) on SSRN. Here is the abstract:

Police gaming of the rules is a perennial challenge for constitutional criminal procedure, leading to twists and hazard zones in the law such as the recent decision in Arizona v. Gant and feared fallout from Maryland v. Shatzer. Police gamesmanship in the “competitive enterprise of ferreting out crime” involves rule-pushing and dodging tactics of dubious propriety that exploit blind spots, blurry regions or gaps in rules and remedies. Currently, courts generally avoid peering into the Pandora’s Box of police tactics unless the circumvention of a protection becomes too obvious to ignore and requires a stop-gap rule-patch that further complicates the maze of constitutional criminal procedure. This approach leaves murky the line between fair and foul play and gives police perverse incentive to game covertly. A new approach is needed, founded on a better understanding of police gaming of the rules. This article takes up the task.

NMCCA decisions

September 17, 2010 | The Law Office of Philip D. Cave

Couple of new NMCCA decisions on some court-martial appeals.

United States v. Soucie. In this case NMCCA decides that the military judge failed to adequately inquire into a duress defense on providency.

The accused raised six errors and the NMCCA specified an additional error. The government agreed that a charge under Article 123a should be set aside because it failed to state an offense. This left a sole specification of impersonation.

MAJ Hasan sitrep

September 17, 2010 | The Law Office of Philip D. Cave

I posted that Mr. Galligan had sought to have the Hasan Article 32, UCMJ, hearing closed to avoid media attention.

Dallas news reports.

A hearing outlining evidence against U.S. Army Maj. Nidal Malik Hasan in last year’s massacre at a soldier readiness center should be public, a military official ruled Thursday.

Crawford, Melendez-Diaz, Briscoe, and Blazier stew

September 17, 2010 | The Law Office of Philip D. Cave

Here is Professor Friedman’s post about Briscoe.

The Virginia Supreme Court today issued its decision in Briscoe on remand from the United States Supreme Court. . The court held that the former Virginia statutory scheme (under which the defendant had to call a lab analyst as his witness if he wanted to examine the analyst) was unconstitutional. This, of course, was the point that I sought to establish in bringing the petition for certiorari; Melendez-Diaz made the point clear, and now the Virginia Supreme Court has drawn the obvious conclusion.
The court held that the error was harmless in Briscoe’s case, but Cypress’s conviction was reversed. I expect his case will plead out.

Here are the SCOTUSWiki links on the Supreme Court litigation.

Why your client wants to stay at the DB

September 17, 2010 | The Law Office of Philip D. Cave

Danger Will Robinson.

United States v. Parker and Woodruff

In these consolidated appeals, the Government challenged the district court’s orders dismissing its 18 U.S.C. § 4248 (2006) petitions for civil commitment of Lonnie Parker and James Woodruff, who were both convicted of various sex offenses and sentenced in military court-martial proceedings, but are currently housed within a Bureau of Prisons facility. The district court dismissed the Government’s petitions because it found that "§ 4248 does not apply to military prisoners [since] they are not `in the custody of the Bureau of Prisons’ pursuant to 18 U.S.C. § 4248(a)." In so holding, the district court relied on its order in a related case, United States v. Joshua, No. 5:09-hc-02035-BR (E.D.N.C. Jan. 13, 2010), which was recently affirmed by this court. See United States v. Joshua, 607 F.3d 379 (4th Cir. 2010) (holding that an individual convicted and sentenced by United States Army court-martial but housed within a facility operated by the Bureau of Prisons is not "in the custody of the Bureau of Prisons" under § 4248(a)). The Government concedes that these appeals present the same issue addressed in, and that the disposition of the appeals is controlled by Joshua.

LTC Lakin sitrep

September 17, 2010 | The Law Office of Philip D. Cave

This is the 13th day that APF (safeguardourconstitution), LTC Lakin’s support site, has failed to post the military judge’s findings and conclusions, and advertises as “Breaking News,” “Judge to Rules (sic) . . ..”

This is the 13th day that LTC Lakin and his team have failed to file a petition for a writ of mandamus or prohibition with the Army Court of Criminal Appeals. (I’m reliably informed that no such petition has been filed as of yesterday.)

1. Delay in filing the writ will not necessarily gain delay in the trial.

Diamond petition filed

September 15, 2010 | The Law Office of Philip D. Cave

The CAAF Daily Journal for 14 September 2010 notes the filing of a petition for review by John M. Diamond.

Here is a FayObserver.com piece which documents some of the history of this case, including Michelle Theer’s abortive efforts to get a new trial.

According to court documents, witnesses for the prosecution repeatedly testified that Theer did not cooperate with the investigation and a prosecutor told the jury in closing arguments that Theer invoked her right to a lawyer when a co-defendant was arrested.

Up periscope

September 15, 2010 | The Law Office of Philip D. Cave

This is the 13th day that APF (safeguardourconstitution), LTC Lakin’s support site, has failed to post the military judge’s findings and conclusions, and advertises as “Breaking News,” “Judge to Rules (sic) . . ..”

SLDN reports:

Servicemembers Legal Defense Network (SLDN), a national, legal services and policy organization dedicated to ending "Don’t Ask, Don’t Tell" (DADT), released a set of formal recommendations today to the Comprehensive Review Working Group, established to author a report on "how" to implement repeal, not "if" repeal should happen.