Court-Martial Trial Practice Blog

Double jeopardy

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

United States v. Brobst, 558 F. 3d 982 (9th Cir. 2009), is primarily a search and seizure case. But here is a tantalizing piece about double jeopardy in a child pornography case.

In light of this court’s decisions in United States v. Davenport, 519 F.3d 940 (9th Cir. 2008) and United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), Brobst’s convictions for both receipt and possession of child pornography violated the Double Jeopardy Clause of the Fifth Amendment to the Constitution. See Davenport, 519 F.3d at 947. "Where we conclude that a defendant has suffered a double jeopardy violation because he was erroneously convicted for the same offense under two separate counts . . . ‘the only remedy consistent with the congressional intent is for the [d]istrict [c]ourt, where the sentencing responsibility resides, to exercise its discretion to vacate one of the underlying convictions.’" United States v. Schales, 546 F.3d 965, 980 (9th Cir. 2008)(quoting United States v. Ball, 470 U.S. 856, 864, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985)). Accordingly, we vacate the judgment and remand with instructions that the district court vacate one of Brobst’s convictions for either receipt or possession of child pornography, allowing for it to be reinstated without prejudice if his other conviction should be overturned on direct or collateral review.

United States v. Brobst, 558 F.3d 982, *39-40 (9th Cir. 2009).

Seekers of change

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

For those who descry the efforts of proponents for change in the military justice system, yesterday could be thought of as a historical reminder that change is hard to achieve.

On 12 April 1633, the Roman Catholic church began it’s heresy inquisition of Galileo.

CAAFLog has a rant today (one of his many and always meaningful), but it’s well worth considering. So before the Tory’s hold their auto da fé on DHS, I have an additional money related question (one I’ve been asking since 1991), why do we need three JAG schools, why can’t the Army take single service responsibility. There are many areas where one of the Services has single service responsibility (for example military confinement facilities). The idea of differences in Service approaches to issues (and a similar argument to the multiple CCA’s) is just that, an argument. Having spent the last nine years since retiring from the Navy practicing in Navy, Marine, Air Force, Army, Coast Guard, courts, I’ve yet to see a situation where there is so much Service difference that a reasonably competent teaching staff can’t address it. And if it’s such a problem, do what the Armed Forces Staff College does, have “Services Week,” either at the beginning (as AFSC does) or the end.

What did happen to Watada?

April 13, 2009 | The Law Office of Philip D. Cave

According to the Honolulu Star Bulletin:

Question: It has been almost three years since 1st Lt. Ehren Watada refused to join his Stryker Brigade Combat Team when it deployed to Iraq from Fort Lewis, Wash. What is his status?

Answer: The Army says it is still awaiting a decision from newly appointed U.S. Solicitor Elena Kagan, who was sworn in three weeks ago, as to whether it will appeal a federal judge’s decision rendered in October.

Right to present a defense

April 13, 2009 | The Law Office of Philip D. Cave

Here’s an interesting post by Prof. Miller.

Colin Miller, Your Only Self Defense: Court Of Appeals Of Louisana Engaged In Incorrect Right To Present A Defense Analysis In Murder Appeal, 13 April 2009.

Most states, including Louisiana, have rules of evidence that govern the admissibility of evidence in their courts. Those rules, however, are not highest law of the land and must bow in the face of higher laws. One of those laws is the United States Constitution, and in Crane v. Kentucky, the Supreme Court found that:

Fourth Amendment and privacy

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

Here is an interesting book review.

Prof. Orin S. Kerr, Slobogin: Privacy at Risk: The New Government Surveillance and the Fourth Amendment, 107(6) Michigan. L. Rev. 951 (2009).

A judges role at trial

April 10, 2009 | The Law Office of Philip D. Cave

Here is an interesting piece by Prof. Colin Miller about the judge who asks questions of witnesses. Prof. Colin Miller, I Won't Be The Judge Of That: Texas Appeal Reveals That The Lone Star State Doesn't Allow For Judicial Interrogation, 9 April 2009.

I think that most people would agree that judges should at least be able to ask some questions to witnesses, and as far as I know, Oregon is the only other state [other than Texas] that does not allow for judicial interrogation. But I'm not going to argue with the Texas position because I think that the Lone Star state is correct that judicial questioning can give off the appearance of judicial bias (or show actual judicial bias).

Here are the Military Rules of Evidence.

Rules of Engagement

April 10, 2009 | The Law Office of Philip D. Cave

Clients and military defense counsel know I have Rules of Engagement (ROE), yes I call them that, for the client to follow, and which I often have for the Members to follow in contested cases.

I have ROE for the Court too.

1. Be nice (not condescending) to the court-reporter. Don’t walk off with exhibits, always return them once you’ve used them, and ask her before leaving the court for the day or at the end of the trial if you “owe” anything (like missing exhibits, or an appellate exhibit you’d told the judge you’d provide later). I can’t remember how many times I’ve been saved in a trial by a comment from the reporter.

PTSD in courts-martials

April 10, 2009 | The Law Office of Philip D. Cave

I’m sure you, like me, have used or tried to use PTSD at trial, either on the merits or at least in sentencing. Along with TBI, PTSD seems to have a significant impact, especially when it results from combat. There has been a lot published over the last few years about how the military handles – or doesn’t handle – these cases. I have found differing attitudes within the various “jurisdictions” I’ve traveled. For example, at Fort Belvoir, they have an exceptional program, well staffed and seemingly well balanced in their approach. Here is an item that may be of interest.

Michael de Yoanna & Mark Benjamin, “I am under a lot of pressure to not diagnose PTSD,” Salon, 10 April 2009.

Thanks to Karen Franklin, and here is her commentary on the article.

Several new AFCCA opinions

April 9, 2009 | The Law Office of Philip D. Cave

There are several new published and unpublished opinions on AFCCA’s website today; including a Lawrence v. Texas issue raised, the continuing effort of the prosecution in punishing an accused for exercising his constitutional rights to a trial, an issue of vindictive prosecution.

United States v. Harvey, __ M.J. ___ (A. F. Ct. Crim. App. 2009). This is a consensual sodomy case implicating Lawrence v. Texas, 539 U.S. 558 (2003).

This case was previously discussed by CAAFLog. What’s interesting is that in oral argument the government seemed to concede no additional element of prejudice under Article 133, UCMJ, but then tried to retract that concession.

Educational event

April 9, 2009 | The Law Office of Philip D. Cave

Here is a link to an event at Washington College of Law, sponsored by NIMJ.

Public Trials? Lifting the Veil on Military Courts-Martial.

Date:
04/14/09