More Than 40 Years Dedicated Exclusively to Military Law | Learn More About Philip D. Cave

Prof. Miller brings us this.

Federal Rule of Evidence 609(b) states the following:

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

United States v. Pearson, 80 M.J. ___ (N-M Ct. Crim. App. 2021).

Sentence adjudged 25 July 2019 by a general court-martial convened at Marine Corps Air Station Yuma, Arizona, consisting of officer and enlisted members. Sentence in the Entry of Judgment: confinement for eight months and a duck dinner.

Appellant asserts four assignments of error [AOEs]:1 (1) this Court lacks jurisdiction to act on the findings and sentence because the convening authority took “no action” on the sentence;2 (2) the military judge erred in failing to suppress Appellant’s statements to a civilian law enforcement officer and his subsequent statements to the NCIS; (3) the evidence is legally and factually insufficient to sustain a conviction for receiving, viewing, and possessing child pornography; and (4) Appellant’s sentence was inappropriately severe. We find merit in the third AOE because only one of the five images charged images constitutes child pornography. Therefore, we set aside certain language in the child pornography specification and reassess the sentence.

APPELLATE ADVOCACY

Tessa Dysart at Appellate Advocacy Blog posts, ““This is Not Proper Appellate Advocacy”: Third Circuit Slaps Sanctions on Attorney Who Copied and Pasted Trial Court Briefs. The attorney was ordered to personally pay the defendant’s costs.

For a historical segue—you might remember that the NMCCA once had a problem of cut-and-pasting, largely wholesale the Government Answer to Appellant’s brief. In United States v. Jenkins, the court took up,

Here’s is a timely reminder about prosecution experts. This report comes from NBC news.

For more than three years, authorities in the state of Washington considered Dr. Elizabeth Woods one of their go-to experts in cases of suspected child abuse, often relying on her medical opinions to determine when to take children from parents or file criminal charges.

But this winter, Woods left her position as the director of the child abuse intervention program at Mary Bridge Children’s Hospital in Tacoma, and last month she was removed from the small roster of doctors who provide expert medical reports to the state’s child welfare agency, hospital and state officials confirmed. Some area prosecutors have also been sending letters to defense lawyers disclosing that Woods’ credibility as an expert witness has been called into question.

If approved by a federal court, the legal settlement will force the Army to review the discharges of recent veterans with mental health issues.

Tens of thousands of former soldiers with less than honorable discharges from the Army might get upgrades soon. In late March, a federal judge is expected to approve a nationwide class action settlement that would force the Army to reevaluate and possibly upgrade those discharges to honorable if there’s evidence of a mental health condition.

The agreement calls on the Army to go back and look at thousands of less than honorable discharges for soldiers who served during the Iraq and Afghanistan wars. If they had a condition like post-traumatic stress disorder or a brain injury, they can become eligible to upgrade their discharges and get access to benefits through the Department of Veterans Affairs.

Read National Veterans Legal Services Program (NVLSP) v. Austin, Sec. Def.

“Various statutory provisions and regulations require the U.S. Department of Defense (“DoD”) to maintain a publicly accessible website containing all decisions rendered by its Discharge Review Boards and Boards for Correction of Military/Naval Records.”

We all like to refer to these prior decisions to triage a new case and to assist formulate arguments for why our client should win. Because they are publically available it is not necessary to have a paid research account like Lexis or Westlaw.

On 10 March 2021, the CAAF granted a petition in U.S. v. Michael P. Whiteeyes on the following issue:

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY ADMITTING APPELLANT’S STATEMENTS TO LAW ENFORCEMENT IN VIOLATION OF MILITARY RULE OF EVIDENCE 304(c).

The ACCA decision is here.

Appellant asserts the military judge erred by failing to suppress his statements to AFOSI, but he focuses on a different portion of the interview than did the Defense’s motion at trial. At trial, the Defense conceded Appellant effectively waived his rights to counsel and silence after the agents re-advised of his rights following the ten-minute break. The Defense’s contention at trial was that Appellant’s subsequent comments about feeling intimidated” was an unequivocal invocation of his Fifth Amendment right to silence. It was this “narrow” question that the military judge addressed and ruled on.

On appeal, Appellant asserts that his initial response when asked whether he wanted a lawyer, “Uh, yes? I don’t know. Like why, why would I need a lawyer,” was an unambiguous invocation of his Fifth Amendment right to counsel that the agents violated by failing to terminate the interview. The Government contends Appellant waived this issue by failing to raise it at trial. We agree that the issue was waived.

United States v. Sunday, AFCCA March 2021.

I was doing some reading of judicial qualifications, especially for appointment to CAAF.

On a side note, it appears that 12 U. S. Supreme Court justices did not take the bar after having first graduated law school and receiving a law degree—notably Justice Robert H. Jackson, of Nuremberg fame, is one; he combined some law school classes with reading the law. Another was Justice Joseph Story, of storied fame for some of the court’s most consequential decisions and his Commentaries on the Constitution of the United States.

As we know, the practice before say 1878 was for aspiring lawyers to “read the law” and through that process becoming recommended and admitted to the bar. The ABA was founded in 1878 and since then has inserted itself into all parts of the education and approval of lawyers either directly or through influence.

The Appellate Advocacy Blog brings, Tips for Delivering A Persuasive Closing Statement, by Adam Lamparello

Closing argument is among the most critical parts of a trial, as it provides attorneys with one final opportunity to persuade the jury to rule in their favor. Below are tips to maximize the persuasive value of a closing argument.

Begin with a strong introduction. As with opening statements, the best closing statements begin with a powerful – and memorable – introduction. And the best closing statements repeat, in the introduction, the theme that was used in the opening statement, remind the jury of the strongest facts supporting a verdict for your client, and reinforce the weakest aspects of your adversary’s case.

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