Court-Martial Trial Practice Blog

CAAF grant on a Walters issue

June 22, 2009 | The Law Office of Philip D. Cave

CAAF has granted review in United States v. Trew of this issue (this is a link to Trew’s discussion on CAAFLog and the NMCCA opinion) (and here is my earlier post):

WHETHER, IN LIGHT OF UNITED STATES v. WALTERS, 58 M.J. 391 (C.A.A.F. 2003) AND UNITED STATES v. SEIDER, 60 M.J. 36 (C.A.A.F. 2004), THE CHARGE AND SPECIFICATION MUST BE DISMISSED WITH PREJUDICE, BECAUSE THE LOWER COURT COULD NOT CONDUCT A PROPER APPELLATE REVIEW UNDER ARTICLE 66 AND DOUBLE JEOPARDY PREVENTS A REHEARING. SEE UNITED STATES v. WILSON __ M.J. ___ (C.A.A.F. 2009).

There has been quite a bit of “heated” discussion on CAAFLog about United States v. Wilson, and how the Walters issue in that case was resolved.

Members Instructions on new “media.”

June 22, 2009 | The Law Office of Philip D. Cave

Jury instructions to include rules on use of new media

Recent incidents of jurors using new media during cases in civilian courtrooms in the States have led a military judge to rework instructions given to panelists in military courts-martial.

Army Col. Ted Dixon, a military judge who edits the military judges’ benchbook, said he’s not aware of any cases of a servicemember posting information on an ongoing court-martial while serving as a juror, but he’s aware of such events in the civilian world.

As a result of cases like these, Dixon said he’s been working on specific language addressing networking phenomena such as Twitter and Facebook that judges would use when instructing troops who sit on court-martial panels. Fellow judges have been providing him feedback and there seems to be a general consensus, he said.

More on groundwork.

June 20, 2009 | The Law Office of Philip D. Cave

Earlier I commented on prosecutors introducing inadmissible irrelevant evidence to set the stage or lay the groundwork for an investigation and prosecution (here). Here’s another case, again from the 1st Circuit.

This case requires us to assess the propriety of the government’s use of a law enforcement officer as the first witness in a multi-defendant drug prosecution to provide an "overview" of the prosecution’s case. While we have condemned aspects of this practice before, most notably in United States v. Casas, 356 F.3d 104, 117 (1st Cir. 2004), we must regrettably revisit the overview witness issue in some detail because of the abuse of that practice in this case and others.

United States v. Flores-De-Jesus, No. Nos. 06-2670, 06-2671, 06-2672, 2009 U.S. App. LEXIS 13093, at *1 (1st Cir. Jun. 18, 2009).

Recording confessions.

June 20, 2009 | The Law Office of Philip D. Cave

Here’s Stan Walters on the issue:

We need to start recording ALL interrogations, stop the abuse of the criminal justice system, and ALWAYS blame the cop first if the bad guy confesses, gets convicted or if Grandma gets tazed because she failed to follow a lawful order and resisted arrest. Juries and ESPECIALLY the public needs to see what really goes on during an interrogation.

No surprise

June 20, 2009 | The Law Office of Philip D. Cave

Alcohol Abuse on Rise Among Soldiers

June 20, 2009

Agence France-Presse

Nearly twice as many US Army Soldiers today compared to six years ago are either alcoholic or engage in damaging behavior such as binge drinking, according to army statistics.

Data shows more than 11 Soldiers per 1,000 were diagnosed as suffering from alcoholism or alcohol abuse problems in the first six months of this year, a jump from 6.1 per 1,000 in 2003.

New CGCCA cases

June 19, 2009 | The Law Office of Philip D. Cave

United States v. Lindsey, the dishonorable failure to pay just debt case is now on line. While prosecution in this case seems reasonable, I’m always concerned when the military begins to act as a debt collection agency.

United States v. Daniel, is an unpublished opinion about admission without objection of a photograph.

Appellant now contends that Special Agent Green could not properly authenticate the photographs because he had no personal knowledge that they were taken from appellant’s computer, and could not identify the photographs as depicting the assault1 because he only heard SC talk about it, yet SC was passed out when the photographs were taken. He also notes that there was no foundation laid as to how the photographs came into CGIS’s possession.

New CAAF opinions.

June 18, 2009 | The Law Office of Philip D. Cave

United States v. Marshall, __ M.J. ___ (C.A.A.F. 2009).

This is a fatal variance case.

Appellant pled not guilty to escaping from the custody of Captain (CPT) Kreitman but was convicted, by exceptions and substitutions, of escaping from the custody of Staff Sergeant (SSG) Fleming. We granted review to consider whether the military judge’s findings created a fatal variance. We hold that it did.

Captain Coke.

June 18, 2009 | The Law Office of Philip D. Cave

Coast Guard O-6 convicted of cocaine use.

Recorded interrogations

June 17, 2009 | The Law Office of Philip D. Cave

The Naval Criminal Investigative Service is concluding a pilot program of recorded suspect interviews.

From experience viewing this video-recorded interviews all of the military services should adopt the practice.

Thomas P. Sullivan has put together a wonderful publication which documents the history and current status of recorded suspect interviews not just in the United States but in other countries. His monograph is the best argument for recording interviews. He has other publications along the same theme.

Justice noir

June 17, 2009 | The Law Office of Philip D. Cave

For those of us who do read crime noir novels for entertainment, here is an interesting perspective. This all quote from Law.com: Legal Blog Watch.

Cloak-and-Dagger Justice

Perhaps it was a dark and stormy night when Scott W. Stucky was sworn in as a judge of the U.S. Court of Appeals for the Armed Forces. It took place on a rain-slicked pier outside an abandoned warehouse. He wore a trenchcoat and a fedora with its brim turned down. A mysterious woman looked on, dressed all in black. The man who presided stood in a shadow, a diamond ear-stud reflecting a distant light.

Or perhaps not. But as Michael Doyle observes at the blog Suits & Sentences, Stucky is the latest federal judge to write an opinion in the hard-boiled noir style epitomized by authors such as Dashiell Hammett and Raymond Chandler. "There was something odd about the electric razor in the bathroom," the opinion begins. "[She] typically changed clothes in the bathroom and for the past year had felt that she was being watched, a feeling that she attributed to paranoia."