Court-Martial Trial Practice Blog

Something to read

September 13, 2010 | The Law Office of Philip D. Cave

Swinging a Sledge: The Right to Effective Assistance of Counsel, the Law of Deportations, and Padilla v. Kentucky, August 31, 2010, Joseph Ditkoff

In Padilla v. Kentucky, the Supreme Court decided that the Sixth Amendment’s guarantee of the effective assistance of legal counsel requires that counsel inform his client whether his guilty plea in a criminal case carries a risk of deportation. The Court’s decision significantly expands the reach of the traditional Sixth Amendment constitutional protection afforded criminal defendants via the long-established rule of Strickland v. Washington, and, concomitantly, significantly alters the landscape of what courts will consider to be adequate representation in criminal proceedings. The precise contours of the right, thus expanded, will be left to the vagaries of the common law in both state and federal court to map out. This short article will discuss Padilla and some of its forebears and foreshadowings. As will be seen, the Supreme Court has again left prosecutors, defense counsel, and judges with a somewhat muddy decision that leaves the hard work for later, and for others…

In light of the discussion ongoing about Denedo’s end, I thought this might be an interesting read.

Don’t keep your car smelling nice

September 13, 2010 | The Law Office of Philip D. Cave

I noticed these two cases on FourthAmendment.com today.

Defendant was stopped for overtinting, and the officer could smell marijuana, the defendant was really nervous, and the car had 18 air fresheners hanging inside. The subsequent search produced 574 grams of cocaine. The search was valid. Richardson v. State, 2010 Ga. App. LEXIS 827 (September 8, 2010).

Defendant was stopped for a traffic offense, and the car had the overwhelming odor of air freshener, defendant could not say where he was going, and he was getting increasingly nervous as the stop continued. That was reasonable suspicion. Wilson v. State, 2010 Ga. App. LEXIS 853 (September 10, 2010).

Up periscope

September 13, 2010 | The Law Office of Philip D. Cave

The Pittsburgh Post-Gazette has a book review of Richard North Patterson’s new book which is about a court-martial. Yes, it’s about a Army officer who returns from Iraq, kills his former commander, and

As the case unfolds, Mr. Patterson gives the reader a tutorial in military justice as well as the complexities of PTSD. He also makes clear his stand against the war through testimonies from personnel involved with McCarran in Iraq.

The tension rises throughout the court-martial: Will the judge allow PTSD as a defense? Will the jury believe how the war changed not just McCarran, but the man he killed?

LTC Lakin sitrep

September 13, 2010 | The Law Office of Philip D. Cave

This is the 10th 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) . . ..”

The APF website does not list or encourage attendance as the previously scheduled Article 39(a), UCMJ, session for tomorrow.

The 10 September 2010 docket for the First Judicial Circuit (Judge Lind’s circuit) does not show a hearing scheduled in LTC Lakin’s case for tomorrow.

More thoughts on LtCol Eidsmoe’s thinking

September 12, 2010 | The Law Office of Philip D. Cave

This is the 9th 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) . . ..”

The Greeley Gazette, hometown newspaper for LTC Lakin has the piece, “Retired JAG Officer Says Judge’s Ruling Against Discovery for Lakin Could Derail Case Based on Legal Precedent.” I posted earlier two quick disagreements with the piece, or what was said in the piece.

First this item:

LTC Lakin sitrep

September 11, 2010 | The Law Office of Philip D. Cave

The Greeley Gazette reports that:

A retired JAG officer with over 23 years of experience, says the military judge who ruled against discovery for a Greeley Army officer may have derailed the government’s case based on precedent from another high profile case involving a military officer.

Lt. Col John Eidsmoe, a retired Air Force officer who works for former Alabama Chief Justice Roy Moore at the Foundation for Moral Law, said Lakin is “raising legitimate constitutional questions” regarding President Obama’s eligibility to be commander-in-chief.

MAJ Hasan sitrep

September 10, 2010 | The Law Office of Philip D. Cave

News8Austin reports:

Next Thursday Maj. Hasan’s pretrial investigation, Article 32 hearing will reconvene.

According to officials, the session is called a Status Conference Hearing and will address additional preliminary measures. Officials say no witness testimony will be heard during this portion of the hearing. The Article 32 hearing will be held on October 12.

LTC Lakin sitrep

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

Navy Times reports:

The combat systems officer of the destroyer Cole is back on duty this week after he was arrested in a courtroom outburst over a disputed traffic ticket in Portsmouth, Va.

Lt. Timothy Barry appeared in court to challenge a speeding ticket, but the proceedings started off bad and got worse: According to a report in the Washington Times, which cited a Sept. 3 internal Navy message, Barry refused to rise when the judge entered the courtroom. When a bailiff asked him why he hadn’t stood, Barry asked whether that was required by law.

Denedo sitrep

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

It appears that Denedo’s case is over. On 8 September 2010, the Court of Appeals for the Armed Forces, with C.J. Effron and J. Baker dissenting, denied the filing of a writ appeal petition out of time. The majority writes:

In support of the motion for leave to file writ-appeal petition out of time, Denedo’s counsel explained that he “erroneously believed that this case was governed by Rule 19(a)(1)(B),” which provides sixty days from the date of the decision at the CCA for filing a petition for review with this court.

Appellate defense counsel requests this court suspend Rule 19(e) pursuant to our authority under C.A.A.F. Rule 33, which states “[f]or good cause shown, the Court may suspend any of these rules in a particular case, on application of a party or on its own motion, and may order proceedings in accordance with its direction.” In our view, neither the fact of the previous Supreme Court review of Denedo’s case, nor the Padilla case are relevant to our analysis as to whether there was good cause for a late filing. Counsel’s claim that he erroneously believed that this court imposed a sixty day deadline for the appeal of writ-appeal petitions does not provide us with the requisite good cause for suspending the deadline for filing a writ-appeal.

Ramrod Five sitrep 8

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

Here is a link to some of the charge sheets through The News Tribune.