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.
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.
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.
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.
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:
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 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.
Now online, the January 2010 Military Lawyer. This is a civil law issue.
The Article 32, UCMJ, hearing has been rescheduled for 1 June 2010.
KWTC.com reports.
The court has decided Maryland v. Shatzer (background documents on SCOTUSWiki here ) and also Florida v. Powell (background documents on SCOTUSWiki here). Both cases relate to “Miranda” rights and confessions. In Powell, the issue was how much detail must go into a “Miranda” warning in order to be sufficient, in Shatzer the court addresses the break in custody situation.
In Powell the issue was whether the rights advice given properly conveyed to the suspect that he had the right to counsel present during questioning and not just before being questioned. After an interesting discussion showing how ambiguous the language used was, the court found the appellant was adequately advised. Interestingly, the court noted that:
The standard warnings used by the Federal Bureau of Investigation are exemplary. They provide, in relevant part: “You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning.” Ibid., n. 3 (internal quotation marks omitted). This advice is admirably informative, but we decline to declare its precise formulation necessary to meet Miranda’s requirements. Different words were used in the advice Powell received, but they communicated the same essential message.
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