Court-Martial Trial Practice Blog

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.

Supreme Court “Miranda” cases

February 24, 2010 | The Law Office of Philip D. Cave

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.

CAAF issues two decisions

February 23, 2010 | The Law Office of Philip D. Cave

United States v. Douglas. This is a UCI case. The military judge found UCI and then crafted a remedy. The issue on appeal related to the appropriateness of the remedy and whether or not the appellant had accepted the remedy and actively participated in the remedy. The AFCCA decision was reversed.

If the record disclosed that the reasonable remedy had been implemented in full, Appellant’s participation in and apparent acquiescence at trial to the remedy crafted and Appellant’s
disavowal of any claim of ineffective assistance of counsel would end the inquiry. However, because the record does not disclose whether the remedy crafted by the military judge was
actually implemented in full, under the facts of this case we devolve to the ordinary test whether unlawful command influence deprived Appellant of access to character witnesses. United States v. Gleason, 43 M.J. 69, 73 (C.A.A.F. 1995) (explaining the government’s burden to establish beyond a reasonable doubt that defense access to witnesses was not impeded by unlawful command influence). We are not convinced beyond a reasonable
doubt that Appellant was not thus prejudiced. United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999) (finding beyond a reasonable doubt the correct quantum of proof applicable to issues of unlawful command influence). Accordingly, we overturn the United States Air Force Court of Criminal Appeals.

The facts of this case are not uncommon. Commands routinely give no contact orders to an accused (but interestingly not their own witnesses). It is not unusual for a command to cast an accused adrift, make them an outcast, and directly or indirectly imply to others that supporting and helping the outcast will be viewed with disfavor.