Court-Martial Trial Practice Blog

Technology

April 17, 2009 | The Law Office of Philip D. Cave

Haven’t noted something on technology for a while, so here is a piece by the American Constitution Society (the antithesis of the Federalist Society).

Susan Freiwald, Phone Tracking Should Require a Warrant.

A pending case in the 3^rd Circuit U.S. Court of Appeals raises a profound question — should the government be able to track your location without a warrant? Not so long ago, few of us carried cell phones. Today, the vast majority of Americans does. At stake are the rules for tracking the location of cell phones and their owners.

Trial Counsel argument on the merits

April 17, 2009 | The Law Office of Philip D. Cave

Colin Miller, Thieves Like Them: Court Of Appeals Of Minnesota Explains The Boundaries Of Proper Prosecutorial Comment During Closing, 17 April 2009.

It is well established that a prosecutor may not belittle or disparage the defendant(‘s case) during closing argument. At the same time, "[a] prosecutor has discretion to fashion a persuasive closing argument, and the rhetoric need not be colorless."

Peterson subsequently appealed, claiming that the prosecutor’s comments crossed the line mentioned above. The Court of Appeals disagreed, finding "that the prosecutor did not characterize appellants defense as ridiculous or otherwise." It distinguished the case before it from cases where prosecutors referred to the defense as "soddy" or "ridiculous" or suggested that the jurors would be “suckers” or "snowed" if they believed the defense.

Injury in sexual assault cases.

April 17, 2009 | The Law Office of Philip D. Cave

I noticed an article on the Navy JAG NKO site today that should be treated with some caution by defense counsel. It is entitled Practice Tip: Presenting medical evidence in a sexual assault case.

I have no problem with the beginning and essential premise of the article – the absence of genital trauma in a rape case is not evidence that no rape occurred (sorry for the double negative). But the reverse is also true! The research is clear that rape cases happen and no observable (including by colposcopy viewing or Toluidine dye application) trauma occurs. The article then goes on to discuss how trial counsel should try to educate members about this. Up to this point I don’t disagree, however this is the language that should cause defense counsel caution, and should launch a Houser motion.

United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993) sets out six factors a military judge should use to determine the admissibility of expert testimony. In United States v. Griffin, 50 M.J. 278 (C.A.A.F. 1999), the Court of Appeals for the Armed Forces makes specific the application of the Daubert factors under a Houser analysis.

FOIA

April 16, 2009 | The Law Office of Philip D. Cave

For more than five years, the ACLU and other advocacy organizations have been seeking the release of Office of Legal Counsel (OLC) memos that supplied the basis for the Bush administration’s interrogation, detention, rendition, and warrantless surveillance policies.

So here they are from the ACLU blog.

DHDT

April 16, 2009 | The Law Office of Philip D. Cave

Gates: DOD will comply — cautiously — with any "Don’t ask" order, reports Stars & Stripes.

Supreme Court billet available

April 16, 2009 | The Law Office of Philip D. Cave

Concurring Opinions blog is discussing speculation that we will soon hear a retirement announcement from Justice Souter. So,

This means that breathless speculation about a successor can begin.

New CAAF case

April 15, 2009 | The Law Office of Philip D. Cave

CAAF has issued an opinion in United States v. Ranney, __ M.J. ___ (C.A.A.F. 2009). Here is the lower court opinion. I find it interesting to read the lower court opinion. You see how the two courts have taken the same record and come to a different conclusion, the selectivity with which each court views and cites the facts, and how the parties may have made different presentations.

The case is worth the read because of its discussion of Articles 90, 91, 92, UCMJ.

Rules of completeness

April 14, 2009 | The Law Office of Philip D. Cave

Mil. R. Evid. 106, is a rule of completeness and applies to both the prosecution and the defense.

Rule 106. Remainder of or related writings or recorded statements
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Federal Evidence blog has reported a Second Circuit opinion dealing with Fed. R. Evid. 106 (the same rule as the military rule).

Double jeopardy

April 14, 2009 | The Law Office of Philip D. Cave

United States v. Brobst, 558 F. 3d 982 (9th Cir. 2009), is primarily a search and seizure case. But here is a tantalizing piece about double jeopardy in a child pornography case.

In light of this court’s decisions in United States v. Davenport, 519 F.3d 940 (9th Cir. 2008) and United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), Brobst’s convictions for both receipt and possession of child pornography violated the Double Jeopardy Clause of the Fifth Amendment to the Constitution. See Davenport, 519 F.3d at 947. "Where we conclude that a defendant has suffered a double jeopardy violation because he was erroneously convicted for the same offense under two separate counts . . . ‘the only remedy consistent with the congressional intent is for the [d]istrict [c]ourt, where the sentencing responsibility resides, to exercise its discretion to vacate one of the underlying convictions.’" United States v. Schales, 546 F.3d 965, 980 (9th Cir. 2008)(quoting United States v. Ball, 470 U.S. 856, 864, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985)). Accordingly, we vacate the judgment and remand with instructions that the district court vacate one of Brobst’s convictions for either receipt or possession of child pornography, allowing for it to be reinstated without prejudice if his other conviction should be overturned on direct or collateral review.

United States v. Brobst, 558 F.3d 982, *39-40 (9th Cir. 2009).

Seekers of change

April 14, 2009 | The Law Office of Philip D. Cave

For those who descry the efforts of proponents for change in the military justice system, yesterday could be thought of as a historical reminder that change is hard to achieve.

On 12 April 1633, the Roman Catholic church began it’s heresy inquisition of Galileo.

CAAFLog has a rant today (one of his many and always meaningful), but it’s well worth considering. So before the Tory’s hold their auto da fé on DHS, I have an additional money related question (one I’ve been asking since 1991), why do we need three JAG schools, why can’t the Army take single service responsibility. There are many areas where one of the Services has single service responsibility (for example military confinement facilities). The idea of differences in Service approaches to issues (and a similar argument to the multiple CCA’s) is just that, an argument. Having spent the last nine years since retiring from the Navy practicing in Navy, Marine, Air Force, Army, Coast Guard, courts, I’ve yet to see a situation where there is so much Service difference that a reasonably competent teaching staff can’t address it. And if it’s such a problem, do what the Armed Forces Staff College does, have “Services Week,” either at the beginning (as AFSC does) or the end.