Court-Martial Trial Practice Blog

Voodoo science – continued

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

We previously commented on an issue of voodoo science, and more on voodoo science, and the National Research Counsel report on the future of forensics. The promoters of this piece of voodoo — a voice stress analyser — convinced law enforcement to fund and buy their expensive machine and methods for using voice stresses to tell if a suspect was lying. A number of reputable people published or sought to publish peer reviewed critiques. Rather than rebut with more peer reviewed research the owners of the company sued. That's right, rather than conduct the discussion in the research laboratory and through peer reviewed articles and research, they sought to close down critics through lawsuits. Also, they persuaded the supposedly neutral peer reviewed journal, the International Journal of Speech Language and the Law, to withdraw the critical commentary. The critique is still available due to the internet — an alert reader captured the article before it was removed from the journal's website. The company had received government funding.

Well here is the next of likely several more shoes to fall on this supposed reliable technology. It continues to be put through its own stress tests.

James D. Harnsberger, Harry Hollien, Camilo A. Martin, and Kevin A. Hollien (in press) Stress and Deception in Speech: Evaluating Layered Voice Analysis, Journal of Forensic Sciences.

Readings

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

Norman C. Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and The Limits of Bad Faith, 86:2 Washington Univ. L. Rev. (2008).

Major General Charles J. Dunlap, Jr. & Major Linell A. Letendre, Military Lawyering and Professional Independence in the War on Terror: A Response to David Luban, 61:2 Stanford L. Rev. 417 (2008).

First amendment and leaking information

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

Here is the intro from Kent Scheidegger of CrimeandConsequences blog.

To refute the notion that freedom of speech or the press is absolute, a

common device is to cite a hypothetical of spoken or written words that

New from CAAF — Article 32 waiver’s and rehearings.

April 2, 2009 | The Law Office of Philip D. Cave

CAAF issued an opinion today in United States v. Von Bergen,

The granted issue was:

WHETHER THE MILITARY JUDGE ERRED WHEN HE HELD APPELLANT’S WAIVER OF HIS ARTICLE 32 RIGHTS FOR HIS 20 SEPTEMBER 2001 COURT-MARTIAL APPLIED TO HIS 23 OCTOBER 2006 REHEARING.

Clients stories

April 2, 2009 | The Law Office of Philip D. Cave

Here's a good reminder from Jon Katz and his blog.

After practicing criminal defense for many years, a lawyer can get

jaded by some of the more cockamamie-sounding urgings from clients,

Miranda.

April 2, 2009 | The Law Office of Philip D. Cave

From CrimeandConsequences blog.

For the second time in two weeks, the U.S. Supreme Court has stayed the

mandate of the Florida Supreme Court in a criminal case on the

Gray, Death Penalty case.

April 2, 2009 | The Law Office of Philip D. Cave

Gray v. Gray, No. 08-3289-RDR (D.C. Kan. April 1, 2009). An ironic twist that the current commandant at the USDB is Colonel Gray. A little history.

Private Gray’s convictions and death sentence became final on July 28, 2008, when the President approved his death sentence. On August 14, 2008, the Secretary of the Army signed an Execution Order directing that Private Gray be executed at the Federal Correctional Complex, Terre Haute, Indiana, on December 10, 2008, at 2200 hours, by lethal injection. On November 26, 2008, this Court granted Petitioner’s motion for a stay of execution and appointment of counsel.

Here is the habeas corpus petition for Private Gray, it's 106 pages (thanx NIMJ). Gray is currently at the USDB with a presidentially approved death penalty. Here is a piece from the introduction.

Juror misconduct.

April 2, 2009 | The Law Office of Philip D. Cave

There has been something of a stir recently about jurors texting and twittering while court is in session. Here another interesting tale of the kind of shenanigans civilian jurors get up to.

We first consider Basham's argument that the district court should have granted his motion for a new trial after learning that the jury foreperson contacted several news media outlets during the penalty phase of the trial.

United States v. Basham, No._________, 2009 U.S. App. LEXIS 6595, at *24 (4th Cir. Mar. 30, 2009).

Colonel Murphy.

April 2, 2009 | The Law Office of Philip D. Cave

Thanks to CAAFLog for this link to the Air ForceTimes article on Colonel Murphy's conviction by a members panel.

Here's an ABA article, same theme. Stephanie Francis Ward, Catch Me if You Can, ABA Journal Magazine online, April 2009.

How true?

April 2, 2009 | The Law Office of Philip D. Cave

Many accused, with halting eloquence, effectively demonstrate remorse and plead for leniency, while others squander the opportunity by engaging in malevolent recriminations and remorseless refusals to accept responsibility. The wisdom or folly that an accused evinces in deciding what to say in an unsworn statement does not diminish his or her right to say it.

United States v. Macias, 53 M.J. 728, 729 (A.C.C.A. 1999).

Actually that's not completely true, there are limits to what can be said in an unsworn statement. This came up for us recently in wanting to tell the members that the client's conviction at special court-martial of a domestic violence charge subjected him to Lautenberg issues and concerns. [n.1] The military judge allowed it.