Court-Martial Trial Practice Blog

Important Supreme Court decision

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

Here is the 21 April 2009 Supreme Court decision in Arizona v. Gant. Basically it limits the scope of a warrantless car search. In the course of its decision the court did not overrule New York v. Belton, 453 U. S. 454 (1981), but concluded Belton was misunderstood and misapplied.

This was a 5 – 4 Decision.

Here is a “news release” by the FLETC legal staff. This is what all U. S. law enforcement personnel currently attending FLETC or who get their alerts is being told about the impact of Arizona v. Gant. All CID/OSI/NCIS/CGIS agents claim to have attended FLETC. So, they are on notice and the “notice” gives you some ideas on investigative and cross-examination questions of the police if your search involves a warrantless search of an auto.

Discovery of “confidential” information

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

D.C. Circuit remands case for district court to determine which company records, including from an internal investigation, were material to the defendant’s defense “and to protect against the public disclosure of material documents in a manner consistent with Thompson’s right to a fair trial,” in United States v. Thompson, __ F.3d __ (D.C. Cir. April 17, 2009) (No. 08-5203).

This is courtesy of Federal Evidence Review blog and is a useful case about discovery. For military cases I suspect this could be an issue most often in computer crimes cases where AOL, Yahoo, etc., cooperate with the police but want to protect their internal “confidential” records and procedures. Well they can do that, but an accused’s constitutional rights will or should override. As the case suggests a court protective order can serve, just as it does in Mil. R. Evid. 412 issues.

Searching cell phones

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

Here is a good article in the FBI LEB.

M. Wesley Clark, Searching Cell Phones Seized Incident to Arrest, 78(2) FBI Law Enforcement Bulletin, 25 (Feb. 2009).

Crawford stuff

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

One of the most potentially influential Supreme Court decisions for trial practitioners is still pending a decision – Melendez-Diaz. This is the issue of forensic reports as testimonial under Crawford. The betting appears to be that it will be a mind-blower written by Justice Scalia.

On 6 April 2009, Professor Freidman, an amicus in the case, noted.

The Supreme Court completed its latest sitting today without deciding Melendez-Diaz v. Massachusetts. The long wait — the case was argued November 10 — suggests that something is brewing. Perhaps the Court is still debating the merits of the particular question presented, whether a forensic lab certificate reporting the presence of cocaine is testimonial. But I still think that should be an easy yes. Perhaps they are debating broader questions concerning the meaning of "testimonial." And perhaps they are debating yet more general questions of constitutional interpretation. April 21 is now the first date on which, barring something unusual, perhaps we will find out.

The Army Lawyer is out

April 21, 2009 | The Law Office of Philip D. Cave

Army Lawyer, March 2009.

Alcohol in sexual assault cases

April 21, 2009 | The Law Office of Philip D. Cave

I take some back, almost.

Again I was looking at the NKO Criminal Law Division’s practice tips and I came across this one dealing with the ““Blackout” defense to alcohol facilitated sexual assault.” No, it’s not. This title implies that the accused has deliberately gotten the complaining witness drunk. This is not the case in 99% of the cases and don’t let the prosecutor characterize it this way. There are several items or thoughts generated from this pointer helpful to the defense. This pointer could be useful to the defense in justifying experts. But let’s comment on the article from a defense perspective – I’ll do this stream-of-consciousness. No secrets here, it’s in plenty of records of trial.

1. The article tells the prosecution to hold the defense feet to the fire on qualified experts. Ha! Doesn’t the prosecution usually deny the expert and then offer one under the “adequate substitute” theory? I would be very interested in the number of times an expert request is made and not approved. Which leads to a next point about this. Now, remember this. When the prosecution denies the request and proffers a substitute, even if it turns out the substitute isn’t really qualified, what has the prosecution done? Conceded necessity. Once that happens it’s all over, the only issue is who and is that person available according to the timetable. Ooops, just gave a hint to the prosecution, but that’s OK.

The Fostering Justice

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

Jayme Evans, JAG Corps “Keistered” Justice In Foster Case, Canadian Free Press, 20 April 2009.

No military prosecutions in recent history have garnered as much negative publicity for the U.S. Marines as have the cases of the Marines of 3/1 Kilo Company, ambushed in Haditha, Iraq, in November of 2005. But the wrongful conviction and imprisonment of another Marine further reinforces the public perception of something institutionally corrupt about the Navy Judge Advocate General Corps’ application of the Uniform Code of Military Justice.

Mexico – travel restrictions

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

Here’s an interesting Order published at Goodfellow AFB, which prohibits military personnel assigned to the 17th Training Wing from traveling to certain parts of Mexico.

[T]he border areas of Mexico, including Tijuana, Nogales, Juarez, Nuevo Laredo, Acuna, Piedras Negras, and Reynosa/Matamoros.

All active duty members, reservists and guardsmen in Title 10 status, attached to the 17 TRW and tenant units are prohibited from traveling to these affected areas. All other 17 TRW personnel, including guardsmen in Title 32 status, DOD civilian employees, contractors and family members are strongly discouraged against travel to these areas of Mexico.

Is DNA as good as we think?

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

Here is an interesting piece from Karen Franklin on her blog.

Here is Edward Humes, Guilt by the Numbers, California Lawyer, April 2009.

This should not be an issue in most military cases because there’s usually an identified suspect. But it’s interesting to see, once again, how law enforcement and prosecution control of the crime labs can potentially influence what the public (and defense) sees or gets – the cheerleading.

Sentencing is a daunting prospect

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

The hideous nature of an offender’s conduct must not drive us to forget that it is not severe punishment that promotes respect for the law, it is appropriate punishment. Although there are clearly times when anything less than severe punishment undermines respect for the law, it is just as certain that unduly severe punishment can negatively affect the public’s attitude toward the law and toward the criminal justice system. It is no doubt partly for that reason that jurists have referred to the responsibility of sentencing as "daunting." See United States v. Grober, F. Supp. 2d , 2008 WL 5395768, at *1 (D.N.J. Dec. 22, 2008) (quoting then Chief Judge Becker in United States v. Faulks, 201 F.3d 208, 209 (3d Cir. 2000)). The power and responsibility of a sentencing court is indeed, nothing short of "daunting." It requires a careful balancing of societal and individual needs, and an ability to determine a sentence based on dispassionate analysis of those often competing concerns. United States v. Olhovsky, No._________, 2009 U.S. App. LEXIS 7895, at *56–1 (3d Cir. Apr. 16, 2009).