Court-Martial Trial Practice Blog

Paying for experience

July 10, 2009 | The Law Office of Philip D. Cave

United States v. Wiechmann, __ M.J. ___, No. 09-0082/MC (C.A.A.F. July 6, 2009) has been decided. There was error, but found to be constitutionally harmless.

After a captain with very little defense experience was detailed to represent a retirement-eligible lieutenant colonel, the Chief Defense Counsel of the Marine Corps detailed a highly respected Marine Reservist LtCol as a defense counsel in the case. From this point on the convening authority and the first military judge on the case refused to recognize or deal with LtCol Shelburne as a detailed counsel. A second judge did accept the detailing. The issue was money, who pays for the LtCol.

Discovery issues.

July 1, 2009 | The Law Office of Philip D. Cave

There’s at least one federal judge who likes to enforce discovery where the prosecution has a – in my words – self executing duty to produce.

Federal Judge Questions Prosecution Conduct in Ye Gon Case.

“This is the second time in less than three months in a high profile case where the Department of Justice has come before this court and asked it to dismiss an indictment after allegations that Brady-Giglio information was not timely produced to the defense,” Sullivan said today.

Military drug policy

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

Drug ‘em if you’ve got ‘em.

I’ve argued often that the military drug policy is broken: Alcohol the number one drug of abuse — a killer, a cause of injury, and a cause of physical damage and loss of military property — goes relatively free from regulation and consequence, military pharmacies distribute millions of prescription drugs and put the people back to work, and the one time user of marijuana goes to jail. Now this.

U.S. military: Heavily armed and medicated: Prescription pill dependency among American troops is on the rise.

This is not news. If the issue with drugs – legal or illegal – is safety, why do thousands of military personnel go back to work with drugs in their pocket after a visit to sick-call, etc?

Tech item

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

Here is this month’s technology/software item to go in your office-in-a-briefcase.

Gwabbit.

gwabbit is an Add-in for Microsoft Outlook and the BlackBerry that finds, gwabs and adds contacts from your emails to your Outlook address book with a single mouse click!

Don’t Ask, Don’t Tell

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

Here is information concerning President Obama’s recent comments on DADT.

Obama urges lesbian, gay patience overturning ‘unjust laws’ (text from the L.A. Times)

Remarks by President Obama at the LGBT Pride Month White House Reception, June 29, 2009.

Here is Volokh Conspiracy’s multiple choice test on the comments.

Life sentence.

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

Abu Ghraib Scandal Haunts Lynndie England

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June 29, 2009

Associated Press

M-Diaz and urinalysis cases

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

I’ve commented earlier that I do not see Melendez-Diaz altering the drug urinalysis case in terms of laboratory evidence. Here is some additional thought which I think supports my conclusion.

Q2: Peer review, forensic experts.

One question that came up during oral argument, and remains after the ruling, is the application of the ruling to peer review witnesses. It is common for a supervisor or peer to review a forensic examination, as part of a quality control process. The reviewer often does not conduct the specific analysis or testing.

What’s the reach of Arizona v. Gant and a search incident?

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

Here is part of Professor Colin Miller’s recent post about search incident to arrest after Arizona v. Gant was decided by the Supreme Court. This is a good review of the issue.

[Quote] In 1969, the Supreme Court established the boundaries of proper search incident to a lawful arrest in California v. Chimel, 395 U.S. 752 (1969). According to the Court,

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape….And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule.

Notification under Vienna Convention

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

It’s been a while since this issue has come up, and it does come up every now and again in military cases – DoD has approximately 50,000 foreign nationals on active duty.

Some more fallout from the U.S. Supreme Court’s decision in Medellin v. Texas fell today from the California Supreme Court. The case is In re Martinez, S141480.
In its Avena decision, the International Court of Justice said that all that was required was a judicial determination of whether the defendant had suffered any prejudice from failure to notify the consulate upon arrest. Very few have, I believe. CJLF argued to the U.S. Supreme Court that Medellin had already received a (negative) judicial determination of prejudice, although the state court decision on that point was less than crystal clear. The Supreme Court decided not to rule on that basis, but noted the issue in a footnote.
In the California case, it is clear. Martinez raised the Vienna Convention claim in his first state habeas petition, and that petition was unambiguously denied on the merits, not procedural default. He has already received the determination the Avena decision says he should receive. President Bush’s memorandum saying the state courts should implement Avena would entitle him to no more, even if it were binding on the states, and Medellin holds it is not. Game over, says Cal. Supreme, in a unanimous decision by Justice Moreno.

/tip Crime&Consequences.