Court-Martial Trial Practice Blog

Discovery

December 31, 2009 | The Law Office of Philip D. Cave

Discovery obligations apply to court-martial motions practice, for example when there is to be a suppression hearing.

The government has a mandatory duty to disclose evidence in its possession that is favorable to the defense, "either because it was exculpatory or of impeachment value . . . ." . The government breaches the duty established by Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, including Giglio v. United States, 405 U.S. 150 (1972), when it withholds such evidence, either willfully or inadvertently, and the withheld evidence is found to be "material." Id. In the context of non-disclosed impeachment evidence, materiality is assessed in terms of whether the reliability of the witness in question may well be determinative of the outcome of the proceedings. See Pennsylvania v. Ritchie, 480 U.S. 39 (1987). That is, the evidence must be such that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Stated otherwise, "the relevant question is: ‘when viewed as a whole and in light of the substance of the prosecution’s case, did the government’s failure to provide . . . [the] Brady impeachment evidence to the defense . . . lead to an untrustworthy [result]. . . ." (some citations omitted).

United States v. Best, No._________, 2009 U.S. Dist. LEXIS 119802, at *19–20 (M.D. Pa. Dec. 23, 2009).

A case of stolen valor

December 30, 2009 | The Law Office of Philip D. Cave

A man accused of posing as a Marine major general at a Veterans of Foreign Wars party in Ramona to celebrate the birthday of the Marine Corps was arraigned Wednesday on a federal misdemeanor charge of making false claims about military decorations or medals.

San Diego News Network reports.

Up periscope

December 29, 2009 | The Law Office of Philip D. Cave

The family of Evan Vela, an imprisoned former soldier from Parker, is expressing gratitude for a Christmas donation to his wife and children.
The donation came about through efforts by a national organization to support soldiers accused of crimes related to the war on terrorism.

reports Standard Journal.

Who am I

December 29, 2009 | The Law Office of Philip D. Cave

State Department investigators say Chief Engineman (SW) Arturo Puente at Jacksonville’s Mayport Naval Station has used a false name for the last 22 years while working at U.S. embassies in Rome and Panama, according to the Florida Times-Union newspaper.

Navy Times reports. No indications of a court-martial or any UCMJ violations.

Happy New Year

December 29, 2009 | The Law Office of Philip D. Cave

Here is Randy Wilson’s letter to his children about being a trial lawyer. His thoughts are equally applicable to both sides in a court-martial.

Two of my children decided to go to law school. One just passed the bar exam, and the other is in the third year of law school. This is a letter I just wrote to them offering some of my views on the practice of law.

I’ve had members refer clients; a former TC as a client; and government witnesses refer clients.

On base search, evidence in state prosecution

December 29, 2009 | The Law Office of Philip D. Cave

Federal law should govern a federal NCIS search on a military base for evidence of a murder of a civilian employee on the base that ends up prosecuted in state court. The court finds that this is a narrow issue in this case. The security search of defendant’s car on the military base was also valid. State v. Torres, 2009 Haw. App. LEXIS 781 (December 15, 2009).

Fourthamendment.com.

Technical advice to end the year

December 29, 2009 | The Law Office of Philip D. Cave

I follow futurelawyer.com because he has one of the great sites for lawyers like myself who travel with an office-in-the-briefcase. Here is an interesting blog for the end of the year. No this isn’t a gadget or a piece of software. But the “procedure” may come in handy. Hopefully it doesn’t bowl you over with laughing too hard.

Regular readers of this blog know that I have dropped smart phones in various water graves; twice, in the toilet (don’t ask), and once in a swimming pool, and once in Tampa Bay. In each case, I did my best to dry them out, but, alas, they died a terrible death. Now, LifeHacker informs me that I could have dried them in a bowl of rice, which, because of its ability to soak up moisture, can save wet electronics if applied soon enough. Since my accidents, I have been a lot more careful with my smartphones, so I hope I never have to try this one out. However, if it happens to you, keep this one in your pocket just in case.

Testimonial: Rice Resurrects Even the Most Soaked of Gadgets – Cellphones – Lifehacker.

Do you trust me game continues

December 28, 2009 | The Law Office of Philip D. Cave

Airman 1st Class Corey Hernandez pulled the trigger. Nothing was supposed to happen, except the metallic click of the hammer striking the firing pin.

Instead, the pistol fired.

Until Dec. 10, when the 23-year-old Garcia died, the Air Force had not had any reported incidents of airmen playing Trust.

No search of cellphone without warrant?

December 26, 2009 | The Law Office of Philip D. Cave

Thanks to howappealing.law.com, here is a Ohio State Supreme Court opinion in State v. Smith. The issue is warrantless searches of cell-phones. While this issue may have been raised in a court-martial, I don’t see a relevant military appellate decision. So the issue is apparently an open one for court-martial cases.

Here is a link to a New York Times editorial on the Ohio case.

The Ohio Supreme Court has struck an important blow for privacy rights, ruling that the police need a warrant to search a cellphone. The court rightly recognized that cellphones today are a lot more than just telephones, that they hold a wealth of personal information and that the privacy interest in them is considerable. This was the first such ruling from a state supreme court. It is a model for other courts to follow.

Sham or shame

December 26, 2009 | The Law Office of Philip D. Cave

The Army’s attempt to stem a rising tide of suicides made it impossible for a Fort Bliss soldier convicted of cruelty toward subordinates to get a fair trial, the soldier’s parents say.

"I still maintain that this was a miscarriage of justice," said John Taylor, father of Pvt. Jarrett Taylor. "They needed a conviction and they got it. É This is a sham."

Taylor said his son, a sergeant at the time, was trying to help soldiers on their first deployment in Iraq survive in a combat zone.