Court-Martial Trial Practice Blog

Whaa, whaa, it’s just so hard.

February 20, 2009 | The Law Office of Philip D. Cave

United States v. Fisher, ARMY 20080012 (A.Ct.Crim.App. 20 February 2009). This case was submitted on its merits. After a review, the court specified two issues, both of relevance to trial advocates and military judges. After finding error, the court found no relief warranted because the error was not prejudicial. We have addressed something similar in the past. See, Trial Counsel Argument – A Judge's Duty.

Specified Issues:I.

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE ALLOWED TESTIMONY FROM SFC ESSINGER AND ARGUMENT BY TRIAL COUNSEL, DURING AGGRAVATION AND SENTENCING, THAT: (1) THE COMMAND WAS PERCEIVED TO BE “SOFT ON CRIME” DUE TO THE LENGTH OF TIME IT TOOK TO BRING THE CASE TO TRIAL, AND; (2) THE ACCUSED SHOULD BE PUNISHED FOR THE MAN-HOURS REQUIRED “DEALING WITH LEGAL PAPERWORK, COUNSELINGS, AND TAKING THE ACCUSED TO AND FROM APPOINTMENTS”?

More on Voodoo Science

February 20, 2009 | The Law Office of Philip D. Cave

Karen Franklin reports a “guest” piece, by Prof. Mnookin, Professor and Vice Dean, UCLA Law School. See actually, Jennifer L. Mnookin, Clueless ‘science,’LA Times, 19 February 2009.

The article is about the congressionally funded National Research Council report on forensic science (look to my earlier posts). Several points that have been on my mind for some years.

Bias: Doctors testing a new medicine are — appropriately — not told which

The Sniff Test.

February 19, 2009 | The Law Office of Philip D. Cave

Prof. Colin Miller, The Bloodhound Gang: Detroit Free Press Article Addresses Admissibility Of Bloodhound Tracking Evidence, EvidenceProf Blog, 19 February 2009. Professor Miller notes the majority rule that courts generally admit evidence that bloodhounds tracked down a defendant. The minority rule is that such evidence is per se inadmissible because:

(1) the actions of the bloodhounds are unreliable;
(2) the evidence

constitutes hearsay;
(3) the defendant is deprived of his

Electronic filings.

February 19, 2009 | The Law Office of Philip D. Cave

There has been much discussion about electronic filings in military appellate litigation. Some of that has been generated because of how civilian courts operate electronically. And of course, more recently as a result of the supposed missed deadline brouhaha in United States v. Rodriguez. CAAFLog has much information on these two issues (if my link doesn't work, just use "Rodriguez" as your term in the CAAFLog search box. But this item below is also interesting.

See, Donna Bader, The Perils of the Electronic Age, An Appeal to Reason blog, 8 February 2009.

Voodoo Science.

February 19, 2009 | The Law Office of Philip D. Cave

What do you do if you have government sponsored or endorsed "science" that helps catch thieves, cheats, and liars, and other scientists question the validity of your science — you threaten a lawsuit for libel.

Professor Tillers has picked up on the interesting topic of voice analysis as first raised on Deception blog. He's noted the interesting twists on the issue, including the fact that the magazine that first published the contradictory article removed it from the web — too late. The offending article was already snapped up and is still available.

See, Prof. Peter Tillers, Voodoo Science in Some Putative Lie Detection Techniques? Tillers on Evidence and Inference, 16 February 2009.

The future of forensics.

February 19, 2009 | The Law Office of Philip D. Cave

Those with an interest in forensics

have been waiting for the much touted National Research Council report

on the state of "forensic science" in the U.S. The National

Article 125 prosecutions.

February 19, 2009 | The Law Office of Philip D. Cave

MAJ Joel P. Cummings, Is Article 125, Sodomy a Dead Letter in Light of Lawrence v. Texas and the New Article 120? The Army Lawyer, January 2009.

Dog’s again.

February 19, 2009 | The Law Office of Philip D. Cave

United States v. Bell, No. 06-4413, 2009 U.S. App. LEXIS 2901 (6th Cir. 17 February 2009). Recently published, this case is a decent primer on automobile stops with drug dog sniffs: what turns a traffic stop into a seizure, etc.

A little more on post-trial.

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

What happens if any enlisted person is reduced at court-martial, or an officer who faces a grade-determination consideration, for conduct as far back as late 2000, and later retires?

10 U. S. Code 1407 sets it out for us.

(f) Exception for Enlisted Members Reduced in Grade and Officers Who Do Not Serve Satisfactorily in Highest Grade Held.—

Immigration (collateral) consequences of a criminal conviction

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

I'm blogging about the presentation given yesterday at the 39th (VA) Annual Criminal Law Seminar. The most important point I learned is that military justice practitioners, myself included, are not necessarily competent to advise a client properly on immigration consequences of a conviction. This of course doesn't matter too much if it's a not guilty plea case all the way. The potential consequences do become relevant in a guilty plea case. Why should military lawyers care, other than a professional need and requirement to give good advice. Two C.A.A.F cases: United States v. Miller and Denedo, and the recent AFCCA decision in United States v. Rose.

Background.

While the appellant in Miller didn't get any relief, the burden has been placed on trial defense counsel and the military judge to ensure an accused is properly informed of sex offender issues when pleading guilty. See United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006). Besides raising IAC against his appellate counsel, Miller raised a Grosty issue post-NMCCA decision that his guilty plea was involuntary for IAC, because his trial defense counsel failed to tell him about sex offender registration.