Court-Martial Trial Practice Blog

New CAAF case

May 7, 2009 | The Law Office of Philip D. Cave

CAAF has issued their opinion in United States v. Delarosa, __ M.J. ___ (C.A.A.F. 2009).

In this case the appellant was initially prosecuted in state court. As a result of a granted suppression motion the state prosecution was dismissed. It appears the state court judge found the civilian police did not “scrupulously” follow the suspects exercise of his rights. The Navy took the case and saw things differently. The state judge’s decision is not dispositive in court-martial because it’s a different jurisdiction, different trial, and different judge – not “law of the case,” and not even worthy of deference.

Unlike the state court judge the Navy judge found that the appellant’s confession to civilian police was admissible. The NMCCA agreed the statement was admissible as has a 4-1 majority of CAAF.

What of Watada

May 7, 2009 | The Law Office of Philip D. Cave

DOJ has dropped its appeal and Watada will not be retried because of double jeopardy concerns.

Here is a more detailed SeattlePI.com report.

Supreme Court

May 7, 2009 | The Law Office of Philip D. Cave

There will be no more oral arguments this term. The “watch” now relates to two pending decisions of importance to military justice practitioners.

The most important is when will the Supremes issue an opinion in Melendez-Diaz. Currently the law in the military for admission of forensic reports is Harcrow (for which M-D is on point). It is possible that the decision could also have some influence over the CAAF decision in United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006). I can only hope. I appreciate that I’m among the very few that believes Magyari wrongly decided because of the need to protect the military urinalysis program. Having had a case in which Dr. Pappa of the A.F. Drug Testing Lab testified on some specific points contradictory to some of the assumptions of the Magyari opinion I’m hopeful there might be some useful language out of M-D. Although as Chief Inspector Wilcox would say, “I’m not sanguine, not sanguine at all.”

Then there is the coram nobis case of Denedo, which will impact military writ practice and some CAAF juridisctional issues.

Rules of Evidence

May 6, 2009 | The Law Office of Philip D. Cave

Here is a follow-up on a proposed change to Fed. R. Evid. 804(b)(3), a good recommendation.

On April 23-24, 2009, the Advisory Committee on Evidence Rules, of the U.S. Judicial Conference, recommended a proposed amendment to Evidence Rule 804(b)(3). The proposed amendment would clarify that the corroborating circumstances requirement under the rule applies to statements against penal interest introduced by the government. This requirement already applies to statements admitted by the defendant. Some courts have held that the same requirement applies to statements offered by the government.

FederalEvidence.com

JOBS for JAGs

May 5, 2009 | The Law Office of Philip D. Cave

May 8, 2009
JOBS for JAGS Seminar
Presented by the Pentagon and DC Chapters of the FBA, the Federal Career Service and Young Lawyers Divisions of the FBA, and the Judge Advocates Association
Location: Army and Navy Club, Washington, DC
This full-day event is designed for junior and senior military attorneys transitioning from active duty to civilian or government practice. The seminar will feature panels of top attorneys from the Department of Justice and other government agencies, as well as from private practice and industry, to share tips and insights on finding employment. Many of the panelists are retired or former Judge Advocates and will share their tips on selling your skills as a JAG to government employers, law firms, and corporations.
Registration: View Brochure Register online at www.jaa.org For a detailed agenda, visit http://www.jaa.org/jobsforjags.htm

Freebee

May 5, 2009 | The Law Office of Philip D. Cave

The Pentagon Chapter of the Federal Bar Association will be throwing an end of oral argument season bash — though, as it turns out, about a month before the final CAAF oral arguments. The festivities will be held at CAAF at 1500 on 27 May 2009. Beverages and light refreshments will be served. All members of the court’s bar are invited.

CAAFLog.

DADT

May 5, 2009 | The Law Office of Philip D. Cave

Here’s a NY Times opinion piece with various positions on the current don’t ask, don’t tell policy.

Federal Rules of Evidence

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

Restyling The Federal Rules of Evidence (Part III).

Gray death sentence.

May 3, 2009 | The Law Office of Philip D. Cave

Here is an item from the FayObserver.com

Why is Ronald Adrin Gray still alive?

Hearsay.

May 3, 2009 | The Law Office of Philip D. Cave

The New York Times reports that the Obama administration is considering preserving the military commissions some form. Part of the motivation for that, it is said, is this: "Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies."

It is unfortunate that we have not yet drawn the right lessons from the Guantanamo-Military Commission experience. One of the notions held by the Bush administration people who set up the commissions was that judges, courts, lawmakers, etc., are naive in their treatment and distrust of hearsay evidence. Like first year law students (and many of their teachers blissfully unburdened by any on-the-ground experience in law enforcement or criminal justice), these "reformers" were bold and believed that any rational dummy knows that hearsay evidence is often worth quite a lot.

What our experience with the commissions should teach us is that hearsay evidence is often worth very little and that its use in adjudication presents serious problems. Any dummy who has just a bit of experience in investigation and litigation should know that. It is not easy to figure out how to sort hearsay wheat from hearsay chaff. But it is important to make the effort. Otherwise we will continue to have imprisonment for years on end on the word of the legendary Afghan goat herder resentful of his neighbor and eager for economic self-advancement.