Court-Martial Trial Practice Blog
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
Have Briefcase (and
Internet), Will TravelFor a Free Consultation
Gray, Death Penalty case.
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.
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.
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?
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
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.
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
Here is the NMCCA en banc opinion in United States v. Neal, __ M.J. ___ NMCCA 200800746 (N-M Ct. Crim. App. March 31, 2009)
.
Peremptory challenges
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
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,