Court-Martial Trial Practice Blog

GPS technology

August 7, 2010 | The Law Office of Philip D. Cave

I’m aware of one case in the military where the NCIS used GPS tracking (after getting a warrant). Fourthamendment.com recommends:

The D.C. Circuit held on Friday that a warrant is needed for prolonged GPS surveillance, recognizing People v. Weaver from New York and limitingKnotts. [This is a highly important decision. Every criminal and constitutional lawyer needs to read it.] United States v. Maynard, No. 08-3030 (D.C.Cir. August 6, 2010)[.]

Two circuits, relying upon Knotts, have held the use of a GPS tracking device to monitor an individual’s movements in his vehicle over a prolonged period is not a search, United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010); United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), but in neither case did the appellant argue that Knotts by its terms does not control whether prolonged surveillance is a search, as Jones argues here. Indeed, in Garcia the appellant explicitly conceded the point. …

ACCA and military judge partiality

August 7, 2010 | The Law Office of Philip D. Cave

On 28 July 2010, ACCA issued a memorandum opinion and decision for the government appeal in United States v. Kirk, ARMY MISC 20100443 (A. Ct. Crim. App. 28 July 2010).

At trial the accused blew providency on an AWOL plea. The prosecution decided they wanted to go forward on the desertion. As part of the case the prosecution wanted to use unwarned statements made to the First Sergeant. The military judge said the statements were coerced, etc., and excluded them. The prosecution appealed. Of course the ACCA ruled in favor of the government that being dragged to the First Sergeant’s office, locked up, and asked a bunch of questions, was not an interrogation and any statements were voluntary. Cases cited are United States v. Duga, 10 M.J. 206 (C.M.A. 1981); United States v. Loukas, 29 M.J. 385 (C.M.A. 1990). Basically it is in the mind of the questioner, not the person being questioned.

Here is the noteworthy piece.

LTC Lakin 3

August 6, 2010 | The Law Office of Philip D. Cave

World News Daily has this report:

At the conclusion of the arraignment, Lakin was ordered not to speak with the press and was taken back to Reed under military escort, surprising and disturbing a civilian lawyer who has been working on his case.

“This was completely inappropriate. Col Lakin was brought here and taken away from here as if he was a common criminal. He was prohibited from talking to the press for two minutes; he was prohibited from talking to anybody, even me,” Paul Rolf Jenson said.

LTC Lakin 2

August 6, 2010 | The Law Office of Philip D. Cave

I had to go to the bank, pet store, and commissary today so I stopped off to watch the arraignment.

There was a standard R.C.M. 802 conference.

The Army script was followed.

LtCol Chessani

August 6, 2010 | The Law Office of Philip D. Cave

onenewsnow.com reports:

The retiring Marine officer believes it was God’s will that the final board of inquiry ruled he must retire from the Marine Corps at the same rank. "I’m not glad about the way things ended, but I’m thankful that God closed the door on the Marine Corps for me," he explains. "I don’t think that I would have walked away. I think I’d still be out there running on that wheel."

This is a short piece on LtCol Chessani.

Military Human experiments?

August 6, 2010 | The Law Office of Philip D. Cave

The Boston Globe reports:

The Department of Defense is investigating whether 80 wounded American service members in Iraq were improperly used as subjects in a test of a possible treatment for brain injuries, according to the Pentagon’s Office of Inspector General.

In addition to the defense investigation, the US Navy is conducting an inquiry into alleged research misconduct and potential violations of the Uniform Code of Military Justice, according to Jennifer Plozai, a spokeswoman for the Pentagon’s inspector general, in response to questions from the Globe. She declined to spell out the nature of the alleged misconduct.

Up periscope

August 6, 2010 | The Law Office of Philip D. Cave

Lot here today. Catching up after a contested trial at Fort Bragg. I’ll update the Lakin page after today’s “events.”

Kate Wiltrout reports the retrial of Richard Mott at NOB, NorVA.

Almost two years after a Navy judge found Seaman Richard Mott guilty of attempted premeditated murder and sentenced him to 12 years in prison, he got a second chance this week to plead his case before a new judge and a military jury.

Collateral consequences

August 6, 2010 | The Law Office of Philip D. Cave

Here is a piece from Kitsap Sun:

A doctor who is being expelled from the Navy was charged by Kitsap County prosecutors Thursday with failing to register as a sex offender, according to attorneys familiar with the case.

State law requires people convicted of certain sex crimes to register as sex offenders within three days of arriving in a new state.

Up periscope

August 5, 2010 | The Law Office of Philip D. Cave

Cleveland.com reports that:

The Department of Defense announced Wednesday that President Barack Obama has nominated Lavelle to be reinstated to the rank of general, the highest in the armed forces. Lavelle died in 1979, seven years after he was forced to retire and was demoted to major general. A general wears four stars; a major general, two. Lavelle, a graduate of Cathedral Latin School and John Carroll University, had been accused of ordering unauthorized bombing raids on North Vietnam and falsifying records about the missions. It was later revealed that the accusations were unfounded.

Miami Herald reports on some blowback from the McChrystal issues.

Up periscope

August 4, 2010 | The Law Office of Philip D. Cave

Army Times reports that:

President Obama has nominated a Cedar Rapids-based assistant U.S. attorney to serve as brigadier general in the Army Reserve and chief judge of the Army Court of Criminal Appeals.