Court-Martial Trial Practice Blog

Upgrade

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

I was over that the Navy Discharge Review Board the other day. Their workload has increased significantly with the bad economy. They were up from 1400 to 2700 petitioners in 2009 over the prior year. It’s the economy, and it’s stupid to waive an administrative separation board if you are being processed for an OTH, unless of course it is a conditional waiver for a general discharge.

A frequent paragraph in DRB denials goes something along these lines:

‘The Board finds that you waived your right to appear before an administrative discharge board. This waiver of your rights at the time is viewed as a matter in aggravation against you in deciding your request for an upgrade.’

Several new CAAF opinions

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

United States v. Cowgill.

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN
DENYING THE DEFENSE MOTION TO SUPPRESS ALL EVIDENCE
FROM APPELLANT’S HOME.

The two underlying point were: potential erroneous information given for a search warrant (statements were factually incorrect, but believed to be true by the detective at the time), and if there was erroneous information, was there enough probable cause without the erroneous information.

Crawford issue

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

On habeas review of state court convictions, the detective’s trial testimony about the statements of two non-testifying co-actors which implicated the defendant in the shooting and which were used to confront the defendant during his interview violated the Confrontation Clause and constituted plain error, in Ray v. Boatwright, _ F.3d _ (No. 08-2825).

Since Crawford v. Washington, 541 U.S. 36 (2004), testimonial statements are inadmissible under the Confrontation Clause unless the declarant testifies subject to cross examination. There are not many cases in which a Confrontation Clause challenge raised for the first time on appeal may result in plain error. The Seventh Circuit recently identified one case which did.

NMCCA decision setting aside

March 3, 2010 | The Law Office of Philip D. Cave

United States v. Sezginalp:

There is an interesting appellate procedural history. The court intially denied various efforts to have a post-trial R.C.M. 706 evaluation. But, the court did sua sponte reconsider the denial and did order a new R.C.M. 706 examination.

On 6 January 2010, the ordered R.C.M. 706 evaluation report was released. The evaluation found that during all relevant time periods, the appellant suffered from Schizophrenia (paranoid type), a severe mental disease, but that at the time of his offenses, the appellant was able to appreciate the nature and quality of his actions. The report, however, concluded that at the time of his trial, the appellant’s mental disease rendered him unable to understand the nature of the proceedings against him or to cooperate intelligently in his defense.

Up periscope 20

March 2, 2010 | The Law Office of Philip D. Cave

The Miami Herald reports that:

A South Carolina congressman said Friday that five Muslim soldiers at Fort Jackson, S.C., had been removed from active duty, and four of them discharged from the Army, in connection with an ongoing probe into alleged threats to poison food at the large South Carolina base.

Up periscope 19

March 2, 2010 | The Law Office of Philip D. Cave

WRAL.com reports that members selection has begun in the Hennis court-martial.

x reports that the military judge has declined to delay trial pending the outcome of Hennis’s District Court jurisdictional case.

Navy Times reports:

Major Hasan update

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

The Temple Daily Telegraph reports that:

Defense attorney John Galligan said Friday that accused Fort Hood shooter Maj. Nidal Hasan could be back in Bell County as early as Monday.

Hasan was notified Thursday that the therapy he was receiving at Brooke Army Medical Center in San Antonio was officially finished. He has been under guard at the hospital since Nov. 7 when he was flown there by helicopter from Scott & White Memorial Hospital in Temple.

CAAF and Article 62 appeals

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

CAAF has issued an opinion in United States v. Bradford, a government appeal of a pretrial ruling.

The appeal was on a military judge declination to pre-admit a Lab Package in a urinalysis case. AFCCA had no trouble saying that a declination to pre-admit evidence is appealable. CAAF had no trouble correctly saying that AFCCA was wrong.

The prosecution proffered the standard lab package and told the military judge they’d produce an expert at trial to discuss the package. That basically was it. On that the military judge was supposed to pre-admit the package. Rather than pre-admit, the military judge told the prosecution that they’d need to produce witnesses and pull out some pages that might be pre-admitted separately. The prosecution then ‘threatened’ the military judge that they were going to appeal. Notably the military judge expressed an opinion that his “ruling” wasn’t appealable. And it appeared the military judge was going to hold the prosecution to its burden to produce actual, like real, evidence. Rather than produce evidence and testimony necessary to lay a foundation for the documents either in the motion or at trial, the prosecution, rather peevishly to my way of thinking, appealed.

New Army Lawyer

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

Now online, the January 2010 Military Lawyer. This is a civil law issue.

Major Hasan update

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

The Article 32, UCMJ, hearing has been rescheduled for 1 June 2010.

KWTC.com reports.