Court-Martial Trial Practice Blog

New ACCA opinion

April 1, 2009 | The Law Office of Philip D. Cave

ACCA issued published opinion today finding error and granting relief in United States v. Amazaki, ARMY 20070676 (A. Ct. Crim. App. March 31, 2009).

We hold, as a matter of due process, appellant was not on fair notice that his conduct, arising from simply negligent possession of child pornography, violated Article 133, UCMJ, under the facts and circumstances of this case. Accordingly, we set aside and dismiss Charge II and its Specification alleging a violation of Article 133, UCMJ, and reassess appellant’s sentence.

[T]he governmentcharged appellant with violating Article 134, UCMJ, by knowingly possessing child pornography in violation of 18 U.S.C. § 2252A.4 On the date the convening authority referred appellant’s charges and specifications to trial, the government dismissed and replaced the Article 134, UCMJ, violation with a charge alleging appellant violated Article 133, UCMJ, by “wrongfully and dishonorably possess[ing]” a diskette containing eight images of child pornography, “negligently fail[ing] to note that there was child pornography” on the diskette, “negligently fail[ing] to eliminate” child pornography from the diskette, and “negligently leaving . . . child pornography on the [d]iskette in his place of residence in such a manner that other persons could easily access” the images.

Exclusion of video-tape deposition under Crawford.

April 1, 2009 | The Law Office of Philip D. Cave

This case could be very helpful to an accused overseas where the prosecution lets witnesses go PCS or off active duty prior to trial, with the idea that the deposition or Article 32, UCMJ, hearing testimony could be used. Note, this case doesn't talk about MLAT's.

The government’s minimal efforts to contact an “unavailable” witness in Mexico on the eve of trial were not reasonable nor in good faith; the playing of the witness’s video deposition at trial violated the Confrontation Clause; because the error was not harmless beyond a reasonable doubt, the conviction was reversed, in United States v. Tirado-Tirado, _ F.3d _ (5th Cir. March 19, 2009) (No. 07-50670).

While it didn't work in this case, the appellant also sought to argue that, "he was denied a full and fair opportunity to cross examine Garay-Ramirez during the video deposition about new information . . ." This must be a consideration, especially if the depositions or Article 32, UCMJ, hearing have been months before trial, you have had the usual failure of the prosecution to comply with the Production requirements of R.C.M. 405(f)(9)(10)(11)(12) [n.1] at the Article 32, and you have a lot more information and discovery.

Art. 120 constitutionality issues

April 1, 2009 | The Law Office of Philip D. Cave

Here is the NMCCA en banc opinion in United States v. Neal, __ M.J. ___ NMCCA 200800746 (N-M Ct. Crim. App. March 31, 2009)

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Peremptory challenges

March 31, 2009 | The Law Office of Philip D. Cave

The Supreme Court has decided Rivera v. Illinois. Justice Ginsburg wrote for a unanimous court.

This case concerns the consequences of a state trial court’s erroneous denial of a defendant’s peremptory challenge to the seating of a juror in a criminal case. If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant’s conviction?

The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless and therefore did not warrant reversal of Rivera’s conviction. We affirm the judgment of the Illinois Supreme Court.

Giles update

March 30, 2009 | The Law Office of Philip D. Cave

Courtesy of FederalEvidence blog we have an update on Giles.

In Giles v. California [documents at SCOTUSWiki], the Supreme Court [Giles the opinion] considered the application of

the forfeiture by wrongdoing exception under the Confrontation Clause and likely Crawford v. Washington,

IAC

March 29, 2009 | The Law Office of Philip D. Cave

Here is the most recent Supreme Court case on IAC claims and evaluation of them. Knowles v. Mirazanyance, ___ U.S. ___ (March 24, 2009).

In this case the appellant sought to convince the courts that his counsel's failure to advance a defense was ineffective. The issue revolves around the existence or potential existence of a requirement to advance every available defense or theory regardless of counsel's evaluation of the benefit or value of doing so. To some extent the issue relates to the client who says "do this" and the counsel who says "no that won't work," or something similar. Or to put it another way, when should appellate courts substitute the judgment of the client over that of the counsel when there are decisions to be made on how to proceed at trial.

This Court has never established anything akin to the Court of Appeals’ “nothing to lose” standard for evaluating Strickland claims. Indeed, Mirzayance himself acknowledges that a “nothingto lose” rule is “unrecognized by this Court.”

Post-trial R.C.M. 917 motions

March 29, 2009 | The Law Office of Philip D. Cave

A change to Fed. R. Crim. Pro. recently adopted reminds me of a motion I file from time to time after the member's have found my client guilty, or at the time the military judge asks if there is anything else before adjourning the court — that's a Griffith motion. But first here is the change to the federal rule (which if you actually believe in Article 36, UCMJ,[n.1] should be adopted by the military — ha ha).

Rule 29. Motion for a Judgment of Acquittal

(c) After Jury Verdict or Discharge.

(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.

We are all used to losing motions for a finding of not guilty under R.C.M. 917. But don't give up. The standard of some evidence is so minimal, and credibility of the evidence is not a factor on a FNG motion. In United States v. Griffith, the court discussed the authority of the military judge to conduct a post-trial session of court prior to authentication of the record.

New CAAF grants

March 29, 2009 | The Law Office of Philip D. Cave

Here are a couple of CAAF grants of immediate interest to trial practitioners.

No. 08-0808/AR. U.S. v. Derand M. DAVIS. CCA 20070808 (couldn't see this on the Army public website). Review granted on the following issue:

WHETHER TRIAL DEFENSE COUNSEL PROVIDED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, INEFFECTIVE ASSISTANCE OF COUNSEL IN THE POST-TRIAL PHASE WHEN HE, WITHOUT CONSULTING WITH APPELLANT, SUBMITTED MATTERS TO THE CONVENING AUTHORITY BUT FAILED TO SUBMIT APPELLANT'S PERSONAL STATEMENT.

Where’s the court going

March 29, 2009 | The Law Office of Philip D. Cave

David G. Savage, Who's Policing the Fourth Amendment? Two cases push the unevenly enforced exclusionary rule closer to repealABA Journal, April 2009. Another writer musing on the potential demise of the Fourth Amendment as we thought we knew it.

Hearsay within hearsay

March 29, 2009 | The Law Office of Philip D. Cave

Here is a post from Prof. Colin Miller reminding us that hearsay within hearsay is still a potential objection to the contents of business records sought to be admitted under a Mil. R. Evid. 803 exception.

Prof. Colin Miller, Layering Effect: Ninth Circuit Finds Public Record With Hearsay Within Hearsay Was Improperly Admitted, EvidenceProf blog, 28 March 2009.

The recent opinion of the Ninth Circuit in United States v. Marguet-Pilado, 08- 50130 (9th Cir. March 27, 2009), addresses a topic that I just covered in my Evidence class yesterday: If a business or public record contains statements made by someone outside the business or public agency, you have hearsay within hearsay, and each level of hearsay must be admissible under some applicable exception.