Court-Martial Trial Practice Blog

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.

Disturbing trend?

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

NMCCA today issued an important published opinion setting aside a finding of guilty to distribution of child pornography under 18 U.S.C. § 2252A(a)(2). United States v. Craig, __ M.J. ___, No. NMCCA 200800716 (N-M. Ct. Crim. App. May 28, 2009).

CAAFLog, 28 May 2009.

AFCCA today issued a fascinating published opinion, which I’ve posted here. United States v. Nerad, __ M.J. ___, No. ACM 36994 (A.F. Ct. Crim. App. May 29, 2009). Senior Judge Francis wrote for a unanimous panel.
Senior Airman (SrA) Nerad was carrying on an adulterous affair with a 17-year-old. But for the fact that he was married, it would have been legal under both military and the relevant civilian law for SrA Nerad to have sex with her. His 17-year-old lover e-mailed to SrA Nerad nude and partially nude pictures of herself. He also took nude pictures of her, including some while they were engaged in sex acts.

More on Bergrin

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

Joe Ryan, A swaggering defense attorney who authorities say turned his back on the law, The Star-Ledger (NJ.com), 31 May 2009.

Last August, authorities say, Paul Bergrin traveled from Newark to Chicago hoping to meet a hit man.

Bergrin, who investigators describe as a go-to lawyer for Newark street gangs, was working on the case of an alleged Monmouth County cocaine kingpin. Authorities say the attorney wanted someone in Chicago to silence a potential witness. That would-be triggerman, however, wound up working on a different case. He was an informant for the federal Drug Enforcement Administration. And his case was against Bergrin.

Measuring Judicial Activism by Federal Appellate Judges

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

Prof. Corey Yung has a very interesting post, one of several more to come, about how to measure judicial activism. As best I can tell it relates to the panel, rather than individual appellate judges. But non-the-less, it’s an interesting way to look at how activist a court may be.

So, appellate judges are more “activist” when they reverse district court judgments under a deferential standard at a higher relative rate compared to reversals using a non-deferential standard. My exact measure (or activism “score”) for activism is reversal rate in non-deferential cases minus the reversal rate in deferential cases. This measure captures when a judge is not deferring to other constitutional actors when we would normally expect him or her to do so.

The measure has the advantage of not being based upon the substantive outcome of the case. A judge can use either a deferential or non-deferential standard and still find for either party. Since we might think that activist judges are not keen to make clear that their decisions are actually activist, looking at substantive outcomes can be tricky as judges try to mask an appearance of activism. Since standards of review are usually non-controversial (in that the parties rarely dispute over which standard applies) formal rules, we might think that there will be less ability for judges to mask their activism. Ultimately, the failure to defer by a judge over time indicates a relative propensity for activism even if we cannot say for certain that any individual decision is activist. As will be clear in my next post, judges vary quite a bit in their deference under standards of review.

Snippets

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

USPO’s delivery guarantee creates no constitutional possessory interest in a package in transit: The post office delivery guarantee does not create a constitutional possessory interest such that US Postal Inspectors could delay a package in Juneau, Alaska for a dog sniff and a search warrant to open it before delivery. United States v. Jefferson, 2009 U.S. App. LEXIS 11169 (9th Cir. May 26, 2009).

Overbroad search warrant was general warrant exposing officer to civil liability: A search warrant for any evidence of crime was unconstitutionally overbroad and not limited by the affidavit. Severance was not possible. Cassady v. Goering, 07-1092 (10th Cir. May 28, 2009). This case has value on what might lead to a successful challenge for overbreadth in a search warrant.

Extreme nervousness, lying about activities, and shaking hands was reasonable suspicion. Thayer v. State, 2009 Ind. App. LEXIS 841 (April 24, 2009). I posted on the issue of general nervousness about being confronted by the police other day. The facts of Thayer are consistent. In Thayer there were other statements and objective indicators to suggest to the police that the accused was more than just a nervous innocent citizen.

Courtesy of FourthAmendment blog.

Be careful what you say.

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

Clients usually ask me if they should write their congressperson. My answer is invariably no – unless you are their son or daughter, or unless you give them thousands of dollars in campaign funds every year.

For those who insist I always tell them to be careful what to say because that could come back to haunt them. The Army has just released an opinion in Scheuerman. In that case they cite to United States v. Gogas, 58 M.J. 96 (C.A.A.F. 2003). This is why I tell clients not to write their congressperson or IG on a pending case.

However, United States v. Scheuerman , __ M.J. ____ (A. Ct. Crim. App. 2009), gives you another reason to warn clients about what they say and to whom. (Although typically it’s often too late by the time you are involved.)

Give up your right to counsel and we’ll let you go.

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

Splitting 5-4, the Supreme Court on Tuesday overruled its 23-year-old ruling in Michigan v. Jackson on the rights of a criminal suspect in police custody who has asked for a lawyer. The Court did so in Montejo v. Louisiana (07-1529), in an opinion written by Justice Antonin Scalia. After Scalia announced the decision, Justice John Paul Stevens spoke orally for the dissenters — a somewhat unusual gesture. Stevens was the author of the 1986 decision that was cast aside; he was the only member of the Court then who is still sitting.

The Court had signaled in late March that it was considering overruling the Jackson decision, a decision designed to assure that the right to a lawyer is not lost during police questioning of a suspect they are holding, resulting in a confession to the crime. The Court ruled there that, once a suspect has claimed the right to a lawyer, any later waiver of that right during questioning would be invalid, unless the suspect initiated communcation with the officers. Among others calling for it to be overruled was U.S. Solicitor General Elena Kagan, who argued it was no longer necessary to protect the rights of those in police custody.

Courtesy of SCOTUSBlog.

Cell phones can be dangerous to your freedom

May 24, 2009 | The Law Office of Philip D. Cave

This case shows one of the downsides of constantly having a cellphone at your side, pocket, or hip.

A man is arrested. Pursuant to the Supreme Court’s opinion in United States v. Robinson, 414 U.S. 218 (1973), "[a] full search of the person, his effects, and the area within his immediate reach at the time of a lawful custodial arrest may be conducted without regard to any exigency or the seriousness of the offense, and regardless of any probability that the search will yield a weapon or evidence of the crime for which the person is arrested." As part of a valid search incident to a lawful arrest, however, can an arresting officer search the contents of the arrestee’s cell phone, and if so, how thorough can that search be? Those were the questions posed to the United States District Court for the District of Massachusetts in United States v. Wurie, 2009 WL 1176946 (D.Mass. 2009).

Colin Miller, Can You Search Me Now? 23 May 2009.

Fear of the police

May 24, 2009 | The Law Office of Philip D. Cave

I’ve noted before that people get nervous when stopped and questioned by the police. Being nervous is not by itself a sign that the person is lying or a criminal or doing something wrong. Although of course NCIS/OSI/CID will often say it is so.

As the writer notes here,

The very presence of a police officer is, in most cases, enough to unnerve the general public. Think about how you respond when a police car appears in your rearview mirror.