Court-Martial Trial Practice Blog

Office-in-a-Briefcase — Tech for Military Lawyers

August 5, 2009 | The Law Office of Philip D. Cave

[Note: sorta in construction]

Many are familiar with my office-in-a-briefcase: the color printer, color scanner, computer, and some peripherals that do — yes — do fit in a briefcase for traveling. Listed on this page are some items that I use or have come across that are useful in a mobile practice. Many of the items are free (it’s about overhead remember). Unfortunately lawyers using a military internet connection or computer may not be able to use all of these items because of restrictions.

Free items:

Adverse inferences

August 5, 2009 | The Law Office of Philip D. Cave

From time to time I try to get a judge to accept and instruct on an adverse inference. Or at least argue it. Generally adverse inferences come up when evidence is “lost” or there has been a refusal of discovery. Basically the argument goes that if the evidence isn’t provided for a reason within the control of the adverse “party,” then it can be argued or presumed that the information would have been favorable to the accused. Here is a nice little piece – from a civil case – that is of interest.

District Court concludes duty to preserve electronic and other evidence commenced on pre-complaint telephone call, warranting adverse-inference instruction sanction, in KCH Services, Inc. v. Vanaire, Inc., et al., _ F.Supp.2d _ (W.D. Ky July 22, 2009) (Civil Action No. 05-777-C).

It seems to me that CID/NCIS/OSI/CGIS have a duty to preserve evidence, along with gathering it. To the extent you may be able to find problems with evidence gathering, handling, witness notes or statements, etc., there may be a way to fit the adverse inference into a botched investigation argument. Just a thought.

/tip Federal Evidence blog.

Use Of Evidence In Electronic Format During Deliberations

August 5, 2009 | The Law Office of Philip D. Cave

Here is an interesting piece about Members having certain types of electronic evidence in the deliberation room.

A few federal courts provide guidance on the use of electronic evidence during jury deliberations, including the Ninth Circuit Model Jury Instructions and the U.S. District Court for the District of New Hampshire.

/tip Federal Evidence blog.

Military probes claims of anti-gay atrocities

August 4, 2009 | The Law Office of Philip D. Cave

Army, Rep. Frank investigating charge that soldiers killed gay Iraqis
By CHRIS JOHNSON, Washington Blade | Aug 4 2009, 1:38 PM

The U.S. military is investigating claims that U.S. service members were involved in committing atrocities against gays in Iraq, although at least one activist is skeptical about the veracity of the allegations.

The U.S. Army Criminal Investigative Command, the service’s primary criminal investigative organization, is looking into the allegations, which were first reported by the Blade last week. An investigator contacted the Blade seeking information on the story.

Miami Herald reporter cleared?

August 4, 2009 | The Law Office of Philip D. Cave

Here’s the initial story.

Military and Media Clash In Complaint

Navy Spokesman Alleges Abuse by Miami Reporter

By Howard Kurtz

Washington Post Staff Writer
Saturday, July 25, 2009

Sex and the Academy

August 4, 2009 | The Law Office of Philip D. Cave

The following is the breakdown of sexual assaults involving midshipmen reported at the Naval Academy from 2001 to 2006, according to an analysis of documents:

49 cases of mids accused of sexual assault.

11 cases were dropped when alleged victims declined to participate in an investigation, leaving 38 cases to be investigated.

Court-Martial of the Apache Kid

August 4, 2009 | The Law Office of Philip D. Cave

His true name remains unknown; he was called Kid by the military personnel at San Carlos Reservation in the southern Arizona Territory where he served with the US Army as an Indian scout intermittently from 1882-87. He became known as Apache Kid only after he was court-martialed on charges of desertion and mutiny following a skirmish at the reservation when he and four other scouts attempted to turn themselves in after being absent without leave for five days. It is McKannas thesis that Kid was caught between cultural loyalty to his Apache heritage and the flux of ever-changing military and civilian laws.

From a review of Clare V. McKanna, Jr., Court-Martial of Apache Kid, Renegade of Renegades, Texas Tech University (2009).

Review by: Edmunds, Robin Farrell. "Court-Martial of Apache Kid, Renegade of Renegades.(Book review)." ForeWord. ForeWord. 2009. HighBeam Research. 4 Aug. 2009 <http://www.highbeam.com>.

The autistic Marine

August 4, 2009 | The Law Office of Philip D. Cave

Autistic Marine booted from the Corps

By Gidget Fuentes – Staff writer, Marine Times.
Posted : Monday Aug 3, 2009 21:23:33 EDT

Expungement

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

Civilian attorneys get quite a few questions about expunging court-martial convictions.

The answer is no, it can’t be done in the same way that many states allow for an expungement. The closest way to have it removed from your record is to have a court-martial reversed for factual sufficiency at the CCA, or get a presidential pardon.

I don’t think it’s IAC not to tell the client about the lack of an expungement procedure. There are a myriad of collateral consequences so it seems to me that you should add this little item to your checklist of advice to the client.

Fingerprint evidence and testimony

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

Tenth Circuit Joins Consensus On Admissibility Of Fingerprint Evidence

In conspiracy to possess marijuana and illegal firearm possession prosecution, expert fingerprint testimony identifying the defendant’s thumb print on guns and ammunition was admissible under FRE 702 and Daubert even though the defendant raised “questions regarding whether fingerprint analysis can be considered truly scientific in an intellectual, abstract sense”; circuit extensively explored the current argument regarding admissibility of fingerprint evidence under the ACE-V (analysis, comparison, evaluation, and verification) process for determining matches applying the Daubert admissibility factors, in United States v. Baines, __ F.3d __ (10th Cir. July 20, 2009) (No. 08-2098).

FederalEvidenceBlog also accounts for the other circuits on how they rule on such issues.