Court-Martial Trial Practice Blog

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.

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.