Court-Martial Trial Practice Blog

A significant holding

June 12, 2009 | The Law Office of Philip D. Cave

United States v. Miller, __ M.J. ___, No. 08-0580/AR (C.A.A.F. June 10, 2009). Let’s get the nub of the case from CAAFLog’s summary.

Judge Ryan writes for a unanimous court. The issue is "whether the Courts of Criminal Appeals, after finding the evidence factually insufficient to support a finding of guilty to a charged violation of an enumerated article of the Uniform Code of Military Justice (UCMJ), may affirm a conviction to a ‘simple disorder,’ under Article 134, UCMJ, 10 U.S.C. § 934 (2000), as an offense necessarily included in the enumerated articles." Id., slip op. at 2. No, CAAF holds. "Article 134, UCMJ, is not an ‘offense necessarily included’ under Article 79, UCMJ, of the enumerated articles and may not be affirmed under Article 59, UCMJ." Id.

Miller is a highly significant case. It pulls a number of jurisprudential weeds, overruling the court’s previous case law indicating that prejudice to good order and discipline and discredit to the armed forces is an element of every UCMJ offense, thus allowing various Article 134 offenses to be treated as LIOs of enumerated articles.

A Randolph sequel?

June 12, 2009 | The Law Office of Philip D. Cave

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.

AF “Law Review”

June 12, 2009 | The Law Office of Philip D. Cave

Here is a link to Volume 63, Air Force Law Review.

There are two articles of interest to military justice practitioners.

DEPOSITIONS AND A CASE CALLED SAVARD ……………………………….. 1
Colonel Mark L. Allred, USAF

AF “The Reporter”

June 12, 2009 | The Law Office of Philip D. Cave

Here is a link to the Spring 2009 issue of The Reporter. There are three items of interest to military justice practitioners.

JUDGE-ONLY SENTENCING: Judicial Power Grab?
Major Brian M. Thompson

CONVENING AUTHORITY
ACTIONS: Why It’s More Important Than Ever to Get Them Right
Major Jeremy S. Weber

Experts on eyewitness testimony

June 11, 2009 | The Law Office of Philip D. Cave

Here is a link to Prof. Colin Miller’s site.

The Areas Of My Expertise: Alabama Federal Court Allows Expert Eyewitness Testimony Despite Eleventh Circuit Precedent.

Professor Miller discusses an 11th Circuit decision allowing expert testimony on the unreliability of eyewitness identifications. The court allowed testimony about problems with identifications, but did not allow testimony that the particular identifications in the case were erroneous.

Seems like it’s explaining things to the jury, much like the prosecution gets to introduce “syndrome” like evidence.

Another we didn’t really let him go case

June 11, 2009 | The Law Office of Philip D. Cave

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.

Post-vaction Syndrome

June 11, 2009 | The Law Office of Philip D. Cave

Oh well, back from vacation. Lot’s to catch up on.

Here is an interesting article:

Anthony E. Giardino, COMBAT VETERANS, MENTAL HEALTH ISSUES, AND THE DEATH PENALTY: ADDRESSING THE IMPACT OF POSTTRAUMATIC STRESS DISORDER AND TRAUMATIC BRAIN INJURY, 77 Fordham L. Rev. 2955 (2009).

I’m not an expert.

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

I’m not an expert I’m here as a teacher to help you understand some of the evidence and facts.

Richard Gabriel, Redefining Credibility: Turning Expert Witnesses into Teachers, 21(3) The Jury Expert, May 2009.

Frequently, however, [jury’s] are turned off by expert witnesses, who may resemble one of the following:

Calling all cars.

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

One of OSI’s “most wanted” has been captured.

Lakenheath airman convicted of possessing child porn is arrested after 8 months on the lam. Stars & Stripes, 5 June 2009.

A law enforcement team — led by the Air Force Office of Special Investigations — apprehended Airman Jeremy Parrot in the town of Ipswich just a day after he was featured on the June 2 edition of the British television show “Crimewatch.”

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.