Court-Martial Trial Practice Blog

A Red Herring, Not – – –

January 26, 2009 | The Law Office of Philip D. Cave

— Or more likely you can't un-ring the phone.

United States v. Thomas, 2009 U.S. Dist. LEXIS 4389, No.08-cr-87-bbc-02 (W.D. Wis. January 20, 2009), is of interest for several reasons: the use of cellphone tracking technology, and application of the recent U.S. Supreme Court decision in Herring v. United States.

First for the techies. Police were investigating a bank robbery involving four suspects. As a result of some astute investigating they interviewed a potential suspects mother. During the interview she told the police about some cellphone calls, in particular a lot of calls from one number where she didn't know the caller. Acting on a hunch, a good hunch as it turned out, police then obtained a trap and trace warrant on that cellphone number. Police then used some sophisticated equipment.

It Must be in the Water.

January 24, 2009 | The Law Office of Philip D. Cave

Professor Yung at Sex Crimes blog has brought attention to a Tennessee decision which would allow expert testimony about an accused's sleepwalking in a child sexual abuse case. He ponders that, "I always discuss sleepwalking as an example, but students sometimes

doubt it ever really comes up. I never imagined it would be a defense

in a child molestation case."

Perjury.

January 22, 2009 | The Law Office of Philip D. Cave

The Air Force Court of Criminal Appeals has issued a decision in United States v. Harris, __ M.J. ___, No. 2008-03 (A. F. Ct. Crim. App. 2009).

IP: This was a government appeal under Article 62, UCMJ.

Background: The accused had been prosecuted for use of cocaine. At trial he testified to an innocent ingestion defense and a friend testified to support his claim. He was found not guilty. The accused tested positive again for cocaine shortly after trial. OSI investigated and the accused's friend dimed him out. Thus the accused is now being prosecuted for obstruction of justice and perjury which resulted in his acquittal. The military judge dismissed the charge based on R.C.M. 905(g), the res judicata and collatoral estoppel rule. Intuitively it would seem right that a person who lied to get acquitted in his trial could be prosecuted later if the lie was exposed and could be proven. However, it's not that simple. What ifthe lie wasn't the reason for the acquittal? What if the members found the accused not guilty because of a serious flaw in the urinalysis collection process?

Probation as a Result of Court-Martial

January 21, 2009 | The Law Office of Philip D. Cave

Major Tyesha E. Lowery, One "Get Out of Jail Free" Card: Should Probation Be an Authorized Courts-Martial Punishment?, 198 Mil. L. Rev. 165 (2008).

Probation is not an authorized punishment that can be adjudged by the military judge or members. The author of this article advocates allowing the trial sentencer to impose "probation," and therefore substituting the military judge's own view of what's good for the unit for that of the commander.

Lest you think otherwise, I'm not averse to a properly constructed, managed, and supervised probation program. It could begin with something similar to the A.F. return to duty program or a residential, non-custodial, correctional training; a form of "liberty risk" / Cinderella liberty; monthly random urinalysis; alcohol screening; anger management counseling; and various other counseling programs.

Computers, Privacy, and Searches

January 21, 2009 | The Law Office of Philip D. Cave

Among the cases denied review were a test of the privacy of a worker’s
computer when the employer agrees to let police search it for
criminal activity — an issue raised by state officials in Florida v. Young (08-528)

Defenses to a Crime

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

Military personnel who suffer severe or moderate traumatic brain injury

(TBI) face an increased risk for developing several long-term health

problems, says a new report from the Institute of Medicine that

More on Interrogations

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

On 3 February, the Court of Appeals for the Armed Forces will hear oral argument in United States v. Delarosa, No. 08-0390/NA [2008 CCA LEXIS 4, N.M. Ct. Crim. App. January 10, 2008)(unpub. opinion)]. The pending C.A.A.F. argument is somewhat interesting in light of the pending Supreme Court argument in Kansas v. Ventris, which we looked at the other day.

Whether there is a violation of Miranda by approaching an individual after invoking his rights depends on which right was invoked, who initiates communication, the subject matter of the communication, when the communication takes place, where the communication takes place, and the time between invocation of the right and the second interview.

United States v. Watkins, 34 M.J. at 345.