Court-Martial Trial Practice Blog

Do Rodriguez and Gilbride mean anything?

July 21, 2010 | The Law Office of Philip D. Cave

United States v. Foisy, __ M.J. __, No. NMCCA 201000026 (N-M. Ct. Crim. App. July 20, 2010). (Thanks to an early posting of the decision by CAAFLog.)

Rodriguez and Gilbride deal with Mil. R. Evid. 304(h)(2) rule of completeness. Mil. R. Evid. 304(h)(2) is a longstanding rule of completeness pertaining to confessions introduced against an accused. See, United States v. Rodriguez, 56 M.J. 336, 341-42 (C.A.A.F. 2002), the rule applies to oral as well as written statements. United States v. Gilbride, 56 M.J. 425 (C.A.A.F. 2002). This is a different rule than Mil. R. Evid. 106.

In deciding the military judge erred in his application of Mil. R. Evid. 304(h)(2), NMCCA identified six non-exclusive factors to consider on the issue.

Up periscope

July 20, 2010 | The Law Office of Philip D. Cave

From on the road.

Air Force Times reports that:

Air Force officials are investigating the Wisconsin National Guard’s top commander.

Orly Taitz-world

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

On 16 July 2010, Orly Taitz posted the following item on her website.

NO ANSWER FROM JUSTICE THOMAS YET. PEOPLE CAN FILE AMICUS CURIAE BRIEFS- FRIEND OF THE COURT, IN SUPPORT OF THE APPLICATION

Pity, because there is a 15 July 2010 entry on the Supreme Court journal regarding Taitz v. Thomas D. MacDonald, Colonel Garrison Commander, Fort Benning, et al:

Ecstatic, a drug to help with PTSD

July 16, 2010 | The Law Office of Philip D. Cave

Oooops, Military.com reports that:

The drug Ecstasy shows positive results in the majority of patients when used to treat post-traumatic stress disorder, according to a report coming out Monday in the Journal of Psychopharmacology.

Federal District Court of Gitmo

July 16, 2010 | The Law Office of Philip D. Cave

crimeandconsequences blog reports a link to:

Eugene Sullivan and Louis Freeh propose creation of a Federal District Court for Guantanamo Bay in this WaPo op-ed. Sullivan is a former CJ of the Court of Appeals for the Armed Forces; Freeh is a former district judge and FBI Director. Their proposal would provide an Article III court and jury for trial of the terrorists without the security problems of the Administration’s initial proposal of holding the trials in New York.

Up periscope

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

CAAF has affirmed United States v. Diaz in a rather non-controversial unanimous decision. While not controversial in my mind, it is worth reading the discussion of Diaz’s attempt to plead guilty by exceptions and substitutions. I’d always thought there was quite a bit of leeway on pleading guilty by E&S, but the CAAF sees otherwise. In my view CAAF got it wrong, but the defense could have done better with the language it offered as a substitute for the charged language. Obviously the accused was trying to minimize the seriousness of the offense. But to me that doesn’t mean he was not provident to a 133 offense. There was nothing preventing the prosecution offering evidence of what was done under R.C.M. 1001. And, for that matter, nothing prohibited the military judge taking into account the prosecutions sentencing evidence and the accused’s providence enquiry as showing a lack of complete remorse or willingness to accept his responsibility.

ABC7 reports that:

A local airman is about to face a court martial, even though the Air Force knows it was a medical condition that caused what was called a dereliction of duty–falling asleep on the job.

Oooops, trial counsel, defense counsel do you agree

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

Here is an new grant from CAAF.

No. 10-0494/AF. U.S. v. Caleb B. BEATY. CCA 37478. Review granted on the following issue:

WHETHER THE SENTENCE MUST BE SET ASIDE BECAUSE THE MILITARY JUDGE DETERMINED THE SENTENCE BASED ON THE INCORRECT MAXIMUM PUNISHMENT.

Excited utterances

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

Federal Evidence Review has a good reminder that what may appear to be statements admissible as excited utterances may not in fact be so. Thus, defense as always your job is to ensure that the prosecution doesn’t get away with ritualistic or talismanic incantations of, “it’s an excited utterance (or some other exception)".”

United States v. Erickson, ___ F.3d ___ (8th Cir. July 12, 2010).

Miranda, where is she

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

Carmen Miranda was a celebrated and successful actress from the 1940’s. She died 5 August 1955. And no she wasn’t auditioning to be co-counsel for LTC Lakin.

Ernesto Arturo Miranda died on 31 January 1976, in prison. Although his notable case resulted in a new trial he was reconvicted. He died in a knife fight.

The case of Miranda v. Arizona has not died yet, or has it, or will it soon. The American Constitution Society has a piece, Examining Miranda’s Future.

Collateral consequences

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

In United States v. Eyster, decided by the 3rd Cir. on 14 July 2010, the appellant claimed he was improperly sentenced because the court considered a 1988 court-martial conviction for rape.

On appeal, Eyster argues that the District Court erred by increasing his criminal history from Category II to Category V, because his 1988 conviction under the UCMJ was not a qualifying prior "sex offense conviction" as defined by § 4B1.5.. . .

The Government concedes, and we agree, that Eyster’s 1988 conviction under the UCMJ was not a qualifying "sex offense conviction" for purposes of § 4B1.5. Therefore, Eyster’s advisory Guidelines range should have been calculated using criminal history Category II, not Category V. This was error[.]As explained, however, the applicable Guidelines range was the same—360 to 840 months—under either criminal history Category. Because this mistake did not result in the calculation of an incorrect Guidelines range, we conclude that it did not affect Eyster’s substantial rights.