Court-Martial Trial Practice Blog

Well, it’s getting closer to over for Kreutzer.

March 12, 2009 | The Law Office of Philip D. Cave

Drew Brooks, Kreutzer enters guilty plea, no longer faces death penalty, FayObserver.com, 11 March 2009. Some observations (on the article, and assuming the article is correct). There is no word in the article about how the family is taking this and what role they did or did not play in the negotiations. As we've discussed elsewhere, the family must be consulted under the Victim Witness Assistance Program rules, although the Army isn't bound to follow the victim's wishes.

1. He was sentenced to "life," which is mandatory. The UCMJ amendment authorizing Life Without Possibility of Parole was passed after Kreutzer was sentenced first time around. See Article 56a, UCMJ, 10 U.S.C. 856a. Under current regulations it will be many years before he becomes eligible for parole. And as a practical matter he's unlikely to see parole.

2. "prosecutors will try to persuade Parrish to raise the aggravated assault charges to attempted premeditated murder charges." Anyone have any idea what this means? Is the prosecution trying to make a major variance on the charge sheet post-referral, post-something?

I can’t open it.

March 12, 2009 | The Law Office of Philip D. Cave

Every so often do you get a file and you can't open it? Check its file extension. The file extension comes at the end of the name of the file and is [dot].bz, and is a key to the name of the software program that created the file.

.bz

If you go to OpenWith.org you will find a host of free programs that may point you to a "reader" program that allows you to open the particular file you are having trouble with.

Objections to giving a DNA sample.

March 11, 2009 | The Law Office of Philip D. Cave

Every now and again a client wants to object to giving a DNA sample once at the Brig. Objections based on religion, the First Amendment, the Fourth Amendment, and the Fifth Amendment, won't work.

Pursuant to congressional authorization, the Federal Bureau of

Investigation ("FBI") established the Combined DNA Index System

Journalists privilege.

March 11, 2009 | The Law Office of Philip D. Cave

This issue of journalists and privilege — and considerations of a Shield Law – is not new to military practice.

A proposed privilege is circulating around Congress and other high offices.

Here is a piece by Prof. Colin Miller of Evidence Prof Blog, writing this time for the Yale Law Journal's Pocket Part — A Public Privilege.

Banking in the war zone.

March 11, 2009 | The Law Office of Philip D. Cave

You have to love it, Thomas E. Ricks, Throwing money away from the problem, The New ForeignPolicy.com, 9 March 2009.

Remember, do not take fees in cash or by check from a client such as this. Get it on plastic, or from a relatives own funds.

Sequestration of witnesses.

March 11, 2009 | The Law Office of Philip D. Cave

There are several times in a trial when I might ask the judge for a no contact order, to sequester witnesses, or to prohibit witness contact during a break or recess in the trial.

I have a fairly standard format for rape and child abuse cases. These in my experience are the cases where the opportunity for witness contamination is at its apogee. Oftentimes you are arriving on the scene too late as the defense counsel because most of the damage has already been done. However, you should still be attempting to minimize damage. For the moment though I wanted to focus on what happens in trial when there is a break in the trial and a witness is still on the witness stand either for their direct, their cross-examination, their redirect, or might be back for rebuttal. And this point works both ways — for defense and for government.

My personal belief is that once someone has begun their testimony no-one should talk to them and they should be told by the judge not to talk with anyone, including talking with the lawyer who called them. I always ask that of the judge when a prosecution witness is involved, and I always tell that to my own witnesses if it happens to us. There are too many ways subtle and not so subtle that a person can respond to the "how am I doing question," for example.

Members, how much information is too much.

March 10, 2009 | The Law Office of Philip D. Cave

Here’s a interesting reference to the Siegelman political prosecution case.

No Reversal Despite Juror Exposure To Internet Information, Media Accounts And E-mail, 10 March 2009.

Eleventh Circuit agrees with trial court, after a hearing with all

Brillon – new Supreme Court case.

March 10, 2009 | The Law Office of Philip D. Cave

The Supreme Court has decided Vermont v. Brillon.

The case is a Sixth Amendment speedy trial case.

The significant delays in the accused getting to trial were caused by Brillon's public defender counsel or himself. The bottom line issue is who is accountable for those delays — the government or the defense.

Eyewitness testimony.

March 10, 2009 | The Law Office of Philip D. Cave

Prof. Colin Miller, Can I Get A(n Eye) Witness: 60 Minutes Story Exposes Problems With Eyewitness IDs, Evidence Prof Blog, 9 March 2009.

Those of you who watched 60 Minutes last night saw the interesting story, Eyewitness: How Accurate is Visual Memory?

And the answer is, "Not very." The story detailed how Jennifer Thompson

Gangs in the military.

March 10, 2009 | The Law Office of Philip D. Cave

Worth the read is Gustav Eyler, Gangs in the Military, 118 Yale L. J. 696 (2009).

Gang activity in the U.S. military is increasing. Gang members undermine good order and discipline in the armed services and pose a serious threat to military and civilian communities. Congress recently responded to this threat by directing the Secretary of Defense to promulgate regulations forbidding the active participation of service personnel in criminal street gangs. This Note reviews the threat posed by military gangs and analyzes existing military policies addressing gang affiliation. This Note concludes with recommendations for the military to consider when it drafts the new regulations demanded by Congress.

Rod Powers, Gang Activity in the U.S. Military, About.com, 12 February 2008.