Court-Martial Trial Practice Blog

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.

Courts-martial for Gitmo?

March 9, 2009 | The Law Office of Philip D. Cave

American Chronicle reports that Rep. Adam Schiff (D-CA) has proposed legislation called the Terrorist Detainees Procedures Act.

Here is the link to H.R. 1315.

Here is a link to the congressman's Guantanamo Detainees Procedures Act of 2005.

Bluebook Online.

March 9, 2009 | The Law Office of Philip D. Cave

Yes, the Bluebook is now online, with yes, a paid subscription. A new annual subscription is $25.00. Subsequent annual renewals are

$15.00. Subscriptions of up to three years may be purchased at the

current rate.

Ethics, prosecutorial discretion, and 800lb G.

March 9, 2009 | The Law Office of Philip D. Cave

Melanie D. Wilson, Finding a Happy and Ethical Medium Between a Prosecutor Who Believes the Defendant Didn't Do It and the Boss Who Says That He Did, 103 Nw. U. L. Rev. Colloquy 65 (2008).

The trial counsel (prosecutor)[n.1] works for the SJA, the SJA works for and advises the convening authority, the convening authority decides what cases go to trial and how they might be desposed of. I'd like to see the trial counsel try this recommendation.

As trained advocates with no personal stake in the outcome of a case, prosecutors are capable of presenting both views. During preliminary hearings, bail hearings, trials, sentencing hearings, and numerous other proceedings, the court routinely asks, "What's the government's position?" When a prosecutor disagrees with her supervisor about the government's position, what's wrong with telling the court that the "office's position is X but my own view is Y." For a concrete example, consider the prosecutor featured in The New York Times article.

More on uniformity in NG.

March 8, 2009 | The Law Office of Philip D. Cave

Here's a link

to attorney Bridget Wilson's article on the model state code of military justice

for the National Guard, that is available on NIMJ's website.

BRIDGET J. WILSON, MODEL STATE CODE OF MILITARY JUSTICE FOR THE NATIONAL GUARD NOT IN FEDERAL SERVICE, Justice for the Military's Minotaurs 6/6/2007.

Model State Code of Military Justice.

March 8, 2009 | The Law Office of Philip D. Cave

In 2003, Congress directed the Secretary of Defense to produce a Model State Code of Military Justice. This Code is intended to be adopted by all of the states for use when dealing with misconduct by personnel in Title 32 status. The idea is to try and have a "uniform" state code rather than 50+ differing codes (Guam and Puerto Rico provide National Guard units).

Jurisdiction over members of the National Guard generally rests with

either the federal government or the state to which their National

MEJA alive and well.

March 8, 2009 | The Law Office of Philip D. Cave

In addition to action under MEJA involving contractors in Iraq, a civilian spouse in Okinawa is headed for a U.S. District Court trial for the death of his stepson on Okinawa.

David Allen, Accused stepdad awaits transfer, Stars &Stripes, 6 March 2009.

The Military Extraterritorial Jurisdiction Act of 2000
The

Lost motions and next moves.

March 8, 2009 | The Law Office of Philip D. Cave

In writing a piece this weekend I came across this excellent article by Pat Grant on Extraordinary Relief, it's worth reading and filing in your trial notebook.

Captain Patrick B. Grant, ARTICLE: Extraordinary Relief: A Primer for Trial Practitioners, 2008 Army Law. 30 (November, 2008).

Compelling Access To Encrypted Laptop

March 5, 2009 | The Law Office of Philip D. Cave

Fifth Amendment Privilege was not violated by compelling the

defendant to provide an unencrypted version of his laptop drive

containing suspected child pornography to the government, in In re Boucher, (D.Vt. Feb. 19, 2009) (No. 2:06-mj-91) (2009 WL 424718) (unpublished) (“Boucher II“)

Voice authentication.

March 5, 2009 | The Law Office of Philip D. Cave

Prof. Colin Miller has posted on how to and who may authenticate a persons voice, Follow My Voice: Seventh Circuit Finds That Voice Authentication Doesn't Need To Be Done By An Expert.

Federal Rule of Evidence 901(b)(5), which states that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence of:

Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.