Court-Martial Trial Practice Blog

Advice to clients about collateral consequences.

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

United States v. Rose, __ M.J. ___, No. ACM 36508 (A.F. Ct. Crim. App. Feb. 12, 2009), has been released. Thanks to CAAFLog for early access to this important case.

This is a case on collateral consequences of court-martial convictions. We've discussed SOR several times. The discussion of collateral consequences, especially in guilty plea cases is becoming much more complex than in the old days. There are three areas of concern: sex offender registration, immigration status for resident aliens, and security clearances.

1. Sex offender. I don't think there can be any doubt these days that there are registration concerns with any offense involving sex and child pornography. I use Sex Offender Registries as a basic starting point. The site tends to be complete and reasonably current. The Adam Walsh Act is online. Sex Crimes blog has a lot of information on registration issues. The DODI 1325.7 is on-line and lists current registration offenses. Page 109, Encl. 27, lists the offenses for which DOD considers registration required. Indecent assault is clearly listed. DD Form 2791-1 is supplied from the Brig or confinement facility. I suspect the Brig at Miramar might be willing to give guidance, as they and Charleston and the USDB are where most sex offenders go to serve a sentence.

Dedrick Fisher and shaken baby prosecutions

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

Patrick Clayborn, Pre-court-martial hearing held for Fort Rucker soldier, 11 February 2009.

So called shaken-baby cases can be difficult. The evidence of nexus between acts alleged and injury or death can be ambiguous and subject to interpretation, or in some cases overpowering.

There are several cases worth reading in this area, Warner, in particular is useful because the holdings of Warner are useful for any case in which the defense and prosecution need to have expert assistance. Warner was itself a shaken-baby case. In Warner the prosecution had obtained one of the best experts possible for itself and then tried to foist an unqualified "expert" on the defense. The bottom line from Warner is what I refer to as a rule of approximate parity in experts, in situations where the prosecution has experts. Of course this remains a troubling aspect of the trial counsel being an entry point and key to the defense access to witnesses in general, not just experts. See United States v. Warner, 62 M.J. 114 (C.A.A.F. 2005). Lest the prosecution resort to United States v. Short, as justifying them having a really good expert and the defense not, the court in Warner points out that:

Gitmo, and whata todo

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

Greg Bruno, Backgrounder: Closing Guantanamo, Council on Foreign Relations, 12 February 2009.

You will notice a reference to trial by court-martial under the UCMJ.

Some, including legal experts with the Congressional Research Service,

Prior False Accusation Evidence and the Confrontation Clause

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

Peter Tillers, Prior False Accusation Evidence and the Confrontation Clause, 12 February 2009, draws attention to an excellent law review piece potentially relevant to a frequent number of military sexual assault cases.

Jules Epstein, True Lies: The Constitutional and Evidentiary Bases for

Admitting Prior False Accusation Evidence in Sexual Assault

Search incident.

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

United States v. Goode, No. 07-2269, 2009 U. S. App. LEXIS 2471, unpublished op. (3d Cir. 9 February 2009).

The interesting point for this case is that the court found that telling a person to stop, ordering them to lie on the ground, and placing them in handcuffs is merely an investigative "stop." Once additional evidence is developed then the person can be arrested and then searched incident to arrest.

Fortunately this is not a situation likely to occur in military cases on base. But the case is interesting to read for a reminder of searches incident to arrest.

Voir dire, Members problems.

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

Professor Miller has an interesting post today, Lie To Me?: Supreme Court Of Maine Opinion Reveals That Jury Deliberations Can Be Used To Prove Juror Deceit During Voir Dire,11 February 2009.

The recent opinion of the United States District Court for the District of Maine in Watts v. Maine,

2009 WL 249236 (D. Me. 2009), reveals the important point that while

Credit for pretrial delay.

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

United States v. Gross (Military Judge), Army Misc. 20081049 unpublished op. (A. Ct. Crim. App. 9 January 2009). [When you get to the court site, go to the "summary dispositions – by date" page.]

This case is a government petitione for an extraordinary writ (not listed in the Denedo pleadings at the Supreme Court as a overusage of the All Writs Act?).

——————————————————-
SUMMARY DISPOSITION ON
PETITION FOR EXTRAORDINARY RELIEF
——————————————————

New research tool.

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

The Army Court of Criminal Appeals has now started loading cases to populate the "Summary Disposition" page. Get there through A.C.C.A.

The court has also posted several new cases — more later.

You need this document.

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

Vol. 7: Long-Term Consequences of Traumatic Brain Injury, 2008, published by the Committee on Gulf War Health: Brain Injury in Veterans and Long-Term Health Outcomes.

It can be obtained free — but only in a .pdf download (unless you want to pay $70.20 for a paper copy).

This is funny.

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

David Mills hosts a fabulous blog — Courtoons.

Join him at his site daily.

Here is the entry for 10 February 2009, a situation well known to appellate defense counsel.