Court-Martial Trial Practice Blog

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There are several new published and unpublished opinions on AFCCA’s website today; including a Lawrence v. Texas issue raised, the continuing effort of the prosecution in punishing an accused for exercising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

Supreme Court petitions to watch

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

Here, courtesy of SCOTUSBlog are several pending petitions of interest.

Docket: 08-833
Title: Oliver v. Quarterman
Issue: Does juror consultation of the Bible during sentencing deliberations deprive a defendant of Sixth Amendment rights and what standard of proof should apply in evaluating the possible prejudice to the defendant?

Opinion below (5th Circuit)
Petition for certiorari
Brief in opposition
Petitioner’s reply brief
Brief amicus curiae of former federal and state prosecutors (in support of petitioner)

Docket: 08-769
Title: United States v. Stevens
Issue: Is 18 U.S.C. 48, on depictions of animal cruelty, facially invalid under the Free Speech Clause of the First Amendment?

Collateral consequences

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

Slightly off message, but in light of the attention given to collateral consequences of a court-martial conviction and my earlier comment about impact on clearances, perhaps there is no impact.
Del Quinten Wilber, Security-Clearance Checks Eyed, Washington Post, 9 April 2009.

AF TJAG certification

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

The CAAF daily journal for today is not updated, but knowing where he sits, we take CAAFLog’s observation that the AF TJAG has certified the following issues as accurate.

I. Whether the Air Force Court of Criminal Appeals erred in denying the United States’ request that the court order an affidavit from Appellee’s original military defense counsel.

II. Whether an "impression" left by civilian defense counsel that Appellee may not have to register as a sex offender amounted to an affirmative misrepresentation and led to Appellee receiving ineffective assistance of counsel.

Interesting CAAF remand

April 8, 2009 | The Law Office of Philip D. Cave

No.

08-0707/AF.

U.S.

v. Calvin J. WHEELER Jr.

Technology in the court-room

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

Not the lawyers — the jurors.

I've posted several articles, and the web is rife with articles, posts, and case decisions about how jurors are using technology in the jury room: twittering, contacting the media, and now this interesting piece by Prof Colin Miller. An Analog Rule in a Digital World?: Court of Appeals of Indiana Precludes Jury Impeachment Based Upon Text Message Found in Defendant's Cell Phone, 7 April 2009.

The issue: What should be done when a juror comes forward after trial

New Supreme Court case on confessions

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

The Supreme Court issued a decision today in Corley v. United States.

The SCOTUSWiki documentation.

The decision in Corley.

Future of the exclusionary rule

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

We made several postings of article assessing the Roberts Supreme Court and the future of the exclusionary rule. Here is another, Susan A. Bandes, The Roberts Court and the Future of the Exclusionary Rule, American Constitution Society, April 2009.

Military Law Review

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

Vol 199 MIL. L. REV., Spring 2009, is now on line complete with typos.

National Scurity (sic) Veiled in Secrecy: An Analysis of the State Secrets Privilege in National Security Agency Wiretapping Litigation
From Law Member to Militry (sic) Judge: The Continuing Evolution of an Independent Trial Judiciary in the Twenty-First Century

The Fourteenth Hugh J. Clausen Lecture in Leadership