Court-Martial Trial Practice

While we are all waiting with bated breath – now Denedo is out – for Melendez-Diaz, Professor Freidman has posted on an interesting Supreme Court of Michigan case interpreting Crawford/Davis.   People v. Michigan, (Mich. 10 June 2009).  Interestingly, the prosecution in the case asserted the statements of the victim were admissible as excited utterances, and affirmatively waived any proffer as a dying declaration.  Here is the nub of Professor Freidman’s comment agreeing with the court’s decision to suppress the statements.

Bryant was accused of murder. He had supplied the victim with drugs for years, and the shooting allegedly occurred at his home. The victim drove himself to a gas station about six blocks away, and there police, responding to a radio dispatch, found him lying on the ground, bleeding and in considerable pain. According to the court, "[t]he police asked him what had happened, who had shot him, and where the shooting had occurred." In response to questions, the victim told the officers that the defendant had shot him about 30 minutes before at the defendant’s house. The victim died several hours later.

The only serious constitutional question was whether the victim’s statement was testimonial. (If Giles had come out the other way, there might have been an interesting issue whether the defendant had forfeited the confrontation right, and I think that would depend primarily on whether one thought it was humanely possible to take a deposition of the victim.) The crucial issue here is one of perspective. Given that the victim was lying on the ground, bleeding and badly wounded, when the police approached him, if one takes the perspective of the officers, knowing only what they knew at the very outset, then it might be plausible to conclude that their primary purpose was to respond to an ongoing emergency. That is essentially the position taken by the three dissenters. But the majority realized that this is the wrong perspective. It said:

United States v. Weston, __ M.J. ___, No. 08-0594/MC (C.A.A.F. June 11, 2009).

This is another of those competing consent/no consent cases.

As is typical, the accused is held at NCIS and denies a consent to search his home.  The enterprising agents rush of to the next room and get wifey to consent.  As usual they don’t tell wifey that the accused has not consented to a search, they’ve kept him incommunicado from wifey, and taken his cell phone away as he was trying to call a lawyer.  This same lawyer later talked to wifey who – too late – withdrew her consent.  CAAFLog has this comment on the potential next step in the case.

In another of a series of cases the Air Force Court of Criminal Appeals has decided a personal jurisdiction issue adverse to the accused.

United States v. Blanton, ACM S31536 (A.F. Ct. Crim. App. 9 June 2009).

Basically the issue relates to the “accounting of pay” part of whether an accused is properly discharged.  The accused was under investigation but no preferred charges existed.  The accused receives his DD214, but no final accounting of pay.  An additional aspect was a finding that the accused had been placed on legal hold pending an investigation.