Court-Martial Trial Practice Blog

Collateral consequences

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

Here courtesy of Sentencing Law & Policy:

This weekend’s must-read comes via this link at SSRN to a new piece by Margaret Colgate Love and Gabriel Chin concerning the Supreme Court’s important decision late last month in Padilla v. Kentucky. "Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction." Here is the abstract:

In Padilla v. Kentucky, 559 U.S. (March 31, 2010), the Supreme Court broke new ground in holding in a 7-2 decision that a criminal defense lawyer had failed to provide his noncitizen client effective assistance of counsel when he did not tell him that he was almost certain to be deported if he plead guilty. It is the first time that the Court has applied the 1984 Strickland v. Washington standard to a lawyer’s failure to advise the client about a “collateral” consequence of conviction – something other than imprisonment, fine, probation and the like, that the court imposes at sentencing. While Padilla’s implications for cases involving deportation are clear, it may also require lawyers to consider many other legal implications of the plea.

Rapper case wrapped up

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

It appears that the case of the “rapper” charged with making threats through rap songs and his website has been resolved. For some weeks the case drew criticism from supporters and the public and the military attitude to free speech issues. Something that we are seeing again in regard to LTC Lakin and Sgt Gary Stein the Marine on the left coast and his MySpace page.

On the rapper, Army Times reports:

Army spokesman Lt. Col. Eric Bloom said Saturday that top brass decided to discharge Hall instead of taking him to trial in part because he admitted his guilt.

New policies post- Major Hasan

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

Stars & Stripes and others are reporting that:

DoD is starting to announce new policies that may go into effect because of the inquiry into Major Hasan. I expect two will cause some heartburn:

More restrictive policy regarding weapons on base, including in quarters. I expect there will an initial uptick in Second Amendment related complaints.

Evidence – eyewitness “identification”

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

Professor Colin Miller has posted an excellent piece about the current status of expert testimony about the inaccuracies of eyewitness identification.

I have done several posts on this blog (here, here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. In a recent post, I noted that "My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it." That post addressed a recent opinion in which the Supreme Court of Utah reversed past precedent and allow for the admission of expert testimony on the inaccuracy of eyewitness identifications. This post addresses a recent opinion, State v. Young, 2010 WL 1286933 (La. 2010), in which the Supreme Court of Louisiana adhered to prior precedent and refused to allow for the admission of expert testimony on the inaccuracy of eyewitness identifications.

Up periscope

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

FayObserver reports that:

An Army major who allegedly told another soldier that his fellow jury members in an October court-martial acted improperly and with an agenda testified Thursday that he never made such an allegation.

Pvt. Justin A. Boyle – a sergeant before having his rank stripped – was convicted in October of involuntary manslaughter and conspiracy for his role in the death of Pfc. Luke Brown.

Hennis sentenced to Death

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

Washington Post reports that:

A military jury has sentenced a soldier to die for killing a North Carolina mother and her two children in 1985.

NMCCA opinion

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

NMCCA has decided United States v. Oglesby.

The issue was prosecution sentencing evidence of other acts toward the victim which had not been charged. Appellant alleged that the military judge failed to conduct a proper 1001 and Mil. R. Evid. 403 balancing test. NMCCA disagreed.

NMCCA found that the military judge properly evaluated the evidence as to its admissibility, including a 403 balancing. The court further found that the military judge correctly gave a limiting instruction to the members on how they could use the additional evidence.

Hennis panel still deliberating

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

FayObserver notes the issue yesterday where the members wanted answers about parole should he be sentenced to life. I found this piece odd.

The jury left the courthouse at Fort Bragg about 5:30 p.m. Wednesday evening without a decision on a sentence for Hennis: life in prison or the death penalty. A death sentence requires a unanimous vote of all 14 jurors; a life sentence requires agreement from at least 11 of the jurors.

Hennis was convicted of premeditated murder, so it’s one or the other life or death. The paper seems to have picked up on the three-quarters vote needed for a sentence in excess of 10 years. In this case he’s already going to get life, the question is whether all 14 members will vote to terminate it.

The apolitical military

April 14, 2010 | The Law Office of Philip D. Cave

There are good reasons that the military should be apolitical in public, and as political as it wants in the voting booth.

Politics Daily reports:

The Army will court martial a lieutenant colonel who refuses to deploy to Afghanistan because he won’t accept orders from President Obama, whom he considers unqualified to be commander in chief, military officials said Wednesday.

Up periscope

April 14, 2010 | The Law Office of Philip D. Cave

Military.com reports that:

They are sold under catchy names like Sage of the Seers, Magic Mint and Thang, designer drugs that can be legally sold at shops and online in most cases.

But due to their increasing use by Sailors and the effects they cause, these designer drugs have been added to the U.S. Navy’s zero-tolerance drug-abuse policy.