Court-Martial Trial Practice Blog

More on discovery

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

The prosecution of Senator Stevens highlighted problems with prosecutors who don’t comply with their Brady-plus obligations. Here’s another one.

New Trial Granted Because of Prosecutor Misconduct: Mike Scarcella writes at Blog of the Legal Times that a D.C. Superior Court judge has granted a new trial to a man convicted of fatally stabbing another man in 2007. The new trial was granted because the prosecutor failed to turn over favorable evidence. Apparently, certain grand jury testimony casting doubt on the government’s chief witness was not handed over to the defendant’s public defender until one month after the conviction. Judge Frederick Weisberg was unable to say whether the testimony would have changed the outcome of the trial, but faulted the prosecutor for failing to turn over "patently disclosable" evidence.

Also from Crime & Consequences blog.

Justice delayed

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

Here is an interesting bit from Crime & Consequences blog.

Reprimanded for Delayed Ruling: At Sentencing Law and Policy, Doug Berman posts an excerpt from a Memphis Commercial Appeal article describing the public reprimand of a Shelby County Criminal Court judge for taking more than seven years to rule on a death penalty appeal. According the the article, Judge Carolyn Wade Blackett was publicly reprimanded for waiting seven years, five months and 21 days to enter her ruling on Perry Cribbs’ death penalty appeal.

Technology

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

Haven’t noted something on technology for a while, so here is a piece by the American Constitution Society (the antithesis of the Federalist Society).

Susan Freiwald, Phone Tracking Should Require a Warrant.

A pending case in the 3^rd Circuit U.S. Court of Appeals raises a profound question — should the government be able to track your location without a warrant? Not so long ago, few of us carried cell phones. Today, the vast majority of Americans does. At stake are the rules for tracking the location of cell phones and their owners.

Trial Counsel argument on the merits

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

Colin Miller, Thieves Like Them: Court Of Appeals Of Minnesota Explains The Boundaries Of Proper Prosecutorial Comment During Closing, 17 April 2009.

It is well established that a prosecutor may not belittle or disparage the defendant(‘s case) during closing argument. At the same time, "[a] prosecutor has discretion to fashion a persuasive closing argument, and the rhetoric need not be colorless."

Peterson subsequently appealed, claiming that the prosecutor’s comments crossed the line mentioned above. The Court of Appeals disagreed, finding "that the prosecutor did not characterize appellants defense as ridiculous or otherwise." It distinguished the case before it from cases where prosecutors referred to the defense as "soddy" or "ridiculous" or suggested that the jurors would be “suckers” or "snowed" if they believed the defense.

Injury in sexual assault cases.

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

I noticed an article on the Navy JAG NKO site today that should be treated with some caution by defense counsel. It is entitled Practice Tip: Presenting medical evidence in a sexual assault case.

I have no problem with the beginning and essential premise of the article – the absence of genital trauma in a rape case is not evidence that no rape occurred (sorry for the double negative). But the reverse is also true! The research is clear that rape cases happen and no observable (including by colposcopy viewing or Toluidine dye application) trauma occurs. The article then goes on to discuss how trial counsel should try to educate members about this. Up to this point I don’t disagree, however this is the language that should cause defense counsel caution, and should launch a Houser motion.

United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993) sets out six factors a military judge should use to determine the admissibility of expert testimony. In United States v. Griffin, 50 M.J. 278 (C.A.A.F. 1999), the Court of Appeals for the Armed Forces makes specific the application of the Daubert factors under a Houser analysis.

FOIA

April 16, 2009 | The Law Office of Philip D. Cave

For more than five years, the ACLU and other advocacy organizations have been seeking the release of Office of Legal Counsel (OLC) memos that supplied the basis for the Bush administration’s interrogation, detention, rendition, and warrantless surveillance policies.

So here they are from the ACLU blog.

DHDT

April 16, 2009 | The Law Office of Philip D. Cave

Gates: DOD will comply — cautiously — with any "Don’t ask" order, reports Stars & Stripes.

Supreme Court billet available

April 16, 2009 | The Law Office of Philip D. Cave

Concurring Opinions blog is discussing speculation that we will soon hear a retirement announcement from Justice Souter. So,

This means that breathless speculation about a successor can begin.

New CAAF case

April 15, 2009 | The Law Office of Philip D. Cave

CAAF has issued an opinion in United States v. Ranney, __ M.J. ___ (C.A.A.F. 2009). Here is the lower court opinion. I find it interesting to read the lower court opinion. You see how the two courts have taken the same record and come to a different conclusion, the selectivity with which each court views and cites the facts, and how the parties may have made different presentations.

The case is worth the read because of its discussion of Articles 90, 91, 92, UCMJ.

Rules of completeness

April 14, 2009 | The Law Office of Philip D. Cave

Mil. R. Evid. 106, is a rule of completeness and applies to both the prosecution and the defense.

Rule 106. Remainder of or related writings or recorded statements
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Federal Evidence blog has reported a Second Circuit opinion dealing with Fed. R. Evid. 106 (the same rule as the military rule).