Court-Martial Trial Practice Blog

New Army Lawyer II

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

In the July Army Lawyer Judge McDonald has some comments based on his first year on the bench. (I have noted over the years that it takes most judges about a year to get their relative bearing.) I think we can all echo his comments and find a myriad of examples from our own and other cases. What I wanted to comment on though was something in the section about keeping track. If this is not what Judge McDonald does in trial or had not meant to convey then I’ll be the first to apologize, but . . .

I have presided over more than a few judge-alone cases where I have asked more questions than the trial counsel, including asking witnesses about elements that were not covered by the Government.

At page 39 (emphasis added).

The internets

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

Two items relevant to the internet, privacy, and the Fourth Amendment. Orwell would be . . .

Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62(4) STANFORD L. REV. 1005 (2010).

This Article proposes a general approach to applying the Fourth Amendment to the Internet. It assumes that courts will try to apply the Fourth Amendment to the Internet so that the Fourth Amendment has the same basic function online that it has offline. The Article reaches two major conclusions. First, Fourth Amendment protections online should depend on whether the data is content or non-content information. The contents of communications, like e-mail and remotely stored files, ordinarily should be protected. On the other hand, non-content information, such as IP addresses and e-mail addresses, ordinarily should not be protected. Second, courts should ordinarily require a search warrant if the government seeks to obtain the contents of protected Internet communications. Further, the scope of warrants should be based on individual users rather than individual accounts.

New ACCA case

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

ACCA has released an unpublished opinion in United States v. Delagarza. It’s an odd case.

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of violating a general order, false official statement, and two specifications of larceny (from his fellow soldiers), in violation of Articles 92, 107, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907, and 921 [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for eighteen months, and reduction to the grade of E-1. The military judge further recommended that only twelve months of confinement be approved, if appellant made full restitution. The convening authority, as an act of clemency, limited confinement to fifteen months, and otherwise approved the adjudged sentence.

In his brief, appellant raises one assignment of error, post-trial ineffective assistance of counsel, which warrants discussion, but no relief. (Emphasis added.)

Wikileaks-Manning update 14

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

USNavySEALS.com reports a possible widening of the Wikileaks – Manning investigation:

Former computer hacker Adrian Lamo (who pointed federal authorities to the Army Intelligence analyst who allegedly leaked the documents, Bradley Manning), has implicated two men in the Boston area in the controversy. Lamo shared that these two men have told him through phone conversations that they provided Manning with assistance, in the form of encryption software. They also allegedly taught Manning how to use the software.

Up periscope

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

Temple Daily News has this odd report concerning John Galligan.

A child molestation case in the Bell County court system more than a decade after the military closed it out took a bizarre turn Friday when a judge ruled the defense attorney must be removed because he could be a potential witness.

Lamar Andre Smith, 41, now of Georgia, appeared before Judge Fancy Jezek of 426th District Court wearing an orange jail-issued jumpsuit on Friday, his attorney John Galligan to his left.

New Army Lawyer

August 27, 2010 | The Law Office of Philip D. Cave

Here is a link to the July Army Lawyer.

“I Won’t Participate in an Illegal War”: Military Objectors, the Nuremberg Defense, and the Obligation to Refuse Illegal Orders

United States v. Blazier: So Exactly Who Needs an Invitation to the Dance?

Man sentenced to military after making threat

August 27, 2010 | The Law Office of Philip D. Cave

That is the headline from the Navy Times:

A judge has sentenced a former university student to join the military for a post he made on Facebook that led to a lockdown at Faulkner University here.

Zachary Lambert, 23, agreed to plead guilty to the misdemeanor charge of harassing communications for a message that made reference to a deadly campus attack at Virginia Tech in 2007. He originally was charged with making a terrorist threat, a felony, and placed in jail on $500,000 bond.

More bulk prosecutions?

August 26, 2010 | The Law Office of Philip D. Cave

Yesterday I posted a Ramrod Five update and also the possibility that Dutch prosecutors may proceed against peacekeepers. Now UPI is reporting that:

A military prosecutor says she may pursue charges against several Australian troops in a raid in Afghanistan last year in which five children died.

Brig. Lyn McDade, the director of military prosecutions, says she is considering the unprecedented step of charging several Defense Force commandos, a move that has infuriated senior officers, The Sydney Morning Herald reported Thursday.

Ramrod Five update 5

August 26, 2010 | The Law Office of Philip D. Cave

According to the Olympian:

A total of 12 soldiers from Joint Base Lewis-McChord face charges in a widening web of alleged misdeeds and conspiracy from their yearlong deployment to Afghanistan. . . .

The seven new defendants were charged this month with 33 charges, with the common thread being conspiracy to commit assault. It was not clear Wednesday who was the target of their alleged assault, although five of them are also charged with striking a fellow soldier.

Investigator context testimony

August 25, 2010 | The Law Office of Philip D. Cave

I have been routinely filing a motion in-limine in cases where I expect the prosecution witnesses, typically law enforcement or DFAS, to be providing context testimony. There are several bases to object: hearsay is bootstrapped, there is implied human lie detector testimony, there are Mil. R. Evid. 701 fact wrapped and disguised as to expert testimony, and an implied ‘he wouldn’t be here if he wasn’t guilty.’ Here is another case from the 2d Circuit, thanks to Federal Evidence Review.

In vacating and remanding defendant’s drug conspiracy conviction, Second Circuit rejects the "government’s claim [a]s simply not credible" that an investigating officer’s testimony about a co-conspirator provided necessary background on the investigation; the officer’s testimony regarding his directions to the co-conspirator to phone his "supplier" and the actions taken by the co-conspirator in response was "inadmissible prejudicial hearsay testimony," that impermissibly communicated to the jury that the co-defendant had identified the defendant as his supplier, in United States v. Gomez, __ F.3d __ (2d Cir. August 4, 2010) (No. 08-3829-cr)

It is not often that a circuit takes the government to task on it’s evidentiary arguments. A recent case in the Second Circuit provides an example of a circuit’s reaction to what it considers an implausible argument on the applicability of FRE 801(c). In the case, the circuit vacated the defendant’s sentence and remanded for retrial because the government had introduced at trial hearsay through the testimony of one of the investigating officers in the case.