Court-Martial Trial Practice Blog

How much is enough.

June 3, 2009 | The Law Office of Philip D. Cave

United States v. Nance, __ M.J. ___, No. 09-0164/AF (C.A.A.F. June 3, 2009).

This case fits within the never ending discussion of what is enough for a provident plea. How much must the accused say, to what extent can the military judge ask leading questions, and what is the effect of the usual “no questions” when the MJ asks either counsel if they want him to ask more questions. If my recollection is correct, most of the recent providency related cases are for violation of Article 134, and the question really relates to what is enough to satisfy the SD/GoD requirement.

For military judges the court has said that you are OK asking leading questions to clarify points already established elsewhere in the record. The court will look to the whole record to decide whether the record is sufficient. It seems that the court is going to apply a balancing test. If the whole providency is nothing but “yes sir,” to a MJ question look for a potential bounce. But if the record is resonant with a stipulation of fact, some inculpatory statements of the accused, then good to go.

Forensic testing.

June 3, 2009 | The Law Office of Philip D. Cave

Professor Tillers has this interesting post on his blog.

In Brown v. Perlman, 2008 U.S. Dist. LEXIS 37546 at n. 41 (May 8, 2008), Judge Magistrate Peck said:

A prosecutor’s failure to conduct forensic tests does not violate a federal constitutional right. See, e.g., Arizona v. Youngblood, 488 U.S. 51, 58-59 (1988).

More on Breath Tests

June 3, 2009 | The Law Office of Philip D. Cave

I’ve already commented on breath tests.

Are military breath tests reliable?

Is the Intoxilyzer 5000 racially and genetically biased?

Here is a new case and continuing discussion which potentially excludes evidence of the Intoxilyzer 5000, a device found to be used frequently at military bases. The issue is actually one of discovery.

Supreme Court Of Minnesota Throws Intoxilyzer 5000 In The Drunk Tank Based Upon Non-Production Of Source Code, Prof. Colin Miller, 3 June 2009.

I have written several previous posts about the problems associated with the Intoxilyzer brand of evidential breath alcohol-testing devices.

Productivity

June 3, 2009 | The Law Office of Philip D. Cave

Having represented numerous recruiters I’m aware that productivity is everything, and that creative “incentives” are often developed. But . . .

Police have arrested a Marine Corps recruiter on charges of felony pimping and kidnapping and are looking into whether he used sex with a 14-year-old girl to entice potential recruits.

Police say Recruiter Pimped Girl, 14, Military.com, from AP.

Contrary to law

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

United States v. Contreras, ACM 37233 (A.F. Ct. Crim. App. 28 May 2009).

Contreras is charged with violating Article 130, UCMJ, as well as some other serious charges. Regrettably this is one of a never ending series of sex cases stemming from alcohol. Here is the issue on the 130.

AFCCA rejects application of United States v. Conliffe to the facts here and finds that committing indecent acts with another is not a purely military offense even though charged under Article 134, UCMJ. This makes sense. The militariness of the action or conduct should be the factor, not what UCMJ article was used for the charge. Using the court’s rationale, house-breaking for the purpose of being disrespectful to a non-commissioned officer would likely not be an offense in Minnesota (although we could be creative I suppose under the MNANG version of the UCMJ), therefore, not punishable under Article 130.

Community regulation.

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

The blog Opinio Juris is one of many frustrated with the type and quality of comments on blogs. So, here’s what they are doing about it.

New Comment Voting Feature at Opinio Juris

by Roger Alford

Readers will note that today Opinio Juris has incorporated a new comment feature that allows our readers to help regulate the quality of comments. The comment rating feature allows readers to vote “Yay” or “Nay” to any comment that is posted. After a certain number of negative votes are cast to a comment (we are still testing the precise number), the comment will be hidden from view. The comment will not be deleted, only hidden. Anyone who wishes to read the comment can still do so, but it will require an affirmative step of clicking on the comment to maximize the text. This is a middle path between our previous approach of completely unfiltered comments, and the other extreme of censoring inappropriate material.

A chaplain’s convictions.

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

A Navy chaplain who served aboard the aircraft carrier Carl Vinson was found guilty Monday of raping a young enlisted woman.

The woman Dillman raped said that he befriended her after she came to him seeking help with problems. She said he attacked her in his apartment one afternoon after they had worked out together.

Virginian-Pilot, 1 June 2009.

Recruiting standards

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

It’s not hard to believe recruiters might go to any lengths to complete mission, having represented a lot of recruiters and also those who claim they were improperly recruited. But does this not take the cake? Not only the recruiter, but MEPS, and he got through boot-camp.

Rick Rogers, Case stirs military recruiting questions: Autistic man in brig, facing court-martial, San Diego Union-Tribune, 1 June 2009.

The Marine Corps is investigating how an autistic man now facing court-martial managed to join the service and graduate from boot camp in San Diego.

Prosecution failure to provide credibility related discovery on their witnesses.

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

A recent Ninth Circuit case highlights the importance of disclosing impeachment evidence and the consequences of failing to do so. The prosecutor requested a criminal history check on a key government witness. The prosecutor indicated he was unaware of the criminal history which was not disclosed to the defense. The defendant was convicted and subsequently the criminal history evidence came to light.

The prosecution’s failure to disclose to the defendant the criminal history of a key witness violated the defendant’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963); the criminal convictions were admissible under FRE 609 and the prior acts of theft or dishonesty were admissible under FRE 608(b), in United States v. Price, F.3d (9th Cir. May 21, 2009) (Nos. 05-30323, 06-30157).

Getting this type of discovery is a frequent problem in military cases. You will notice that Price does not cite to Henthorn. It is unlikely you will find a reference in military cases to Henthorn as a legal standard in the military for background checks on prosecution witnesses. Military discovery is broader than in the civilian community, and you should take the position that Henthorn is more restrictive than contemplated in military practice. An additional argument is that such background checks do not require a discovery request; the duty on the prosecutor is a self-executing one that must be personally done in all cases.

"the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police."

Kyles v. Whitley, 514 U.S. 419 (1995).

Military lawyering.

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

Kenneth Anderson, The Role of the United States Military Lawyer in Projecting a Vision of the Laws of War, 2 Chi. J. Int. L. 445 (Fall 2003).

Kenneth Anderson, Professor of Law, Research Fellow, The Hoover Institution on War, Revolution and Peace, Stanford University.