Court-Martial Trial Practice Blog

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There are several new published and unpublished opinions on AFCCA’s website today; including a Lawrence v. Texas issue raised, the continuing effort of the prosecution in punishing an accused for exercising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

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.