Court-Martial Trial Practice Blog

Technology and Crime Catching

February 6, 2009 | The Law Office of Philip D. Cave

NACDL has an interesting News Release, Civil Liberties, Religious Groups Seek to Require Warrants for Police GPS Surveillance.

A diverse group of civil liberties and religious organizations this week weighed in on the question of whether police need a warrant in order to conduct surveillance of personal vehicles by secretly attaching global positioning satellite (GPS) transmitters. The case, which is scheduled to be heard next month in New York’s highest court, has profound implications for the privacy rights of individuals and organizations.

The law is constantly adjusting to technology — the phone tap, the pen register, the thermal imaging device, are one of many items to get into your house. We've commented earlier about the use of cellphone tracking technology on where and how to find you. In each of the technology questions lies the issue of choice, or lack thereof.

Megans’ Law: Effective?

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

Dr. Karen Franklin is one of many reporting the results of a survey in New Jersey on the effectiveness of Megan's law.

Karen Franklin, Megan's Law: Millions for Nothing, 5 February 2009. Bottom line:

Despite their enormous popularity, little research has been conducted into whether they work.

Client Rules of Engagement.

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

I have Rules of Engagement for clients: for their conduct around the court-house, in the court-room, and on the witness stand. If you've done a case with me you have the ROE. They need it, and typically the more senior the client the more the need for ROE. So, it's timely of Angus to talk about:

Jim McElhaney, On Good Behavior: A witness who speaks simply and directly looks pretty good to a jury, ABA Magazine, February 2009.

Does this sound familiar?

Desertion with Intent.

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

The Army Court of Criminal Appeals has decided United States v. Lanier, No. 20080296 (A. Ct. Crim. App. 4 February 2009). The opinion has some current value, even though this is a guilty plea and adequacy of the providency case.

In this case the appellant was granted EML from duty in Iraq because his father had had a stroke. Appellant failed to return from his EML. He never asked for his EML to be extended or a humanitarian transfer. At trial he plead guilty to desertion with the intent to avoid hazardous service, in violation of Article 85(a)(2), UCMJ.

While deployed his squadron was engaged in frequently hostile operations. The unit suffered numerous combat casualties while deployed, including at least three deaths during the time appellant served with his unit in Iraq. At several points . . . , appellant reiterated that his duties in Iraq were dangerous and hazardous, with a significant risk of violence and injury due to hostile encounters. The stipulation of fact makes clear the hazardous character of the duty continued even after appellant quit his unit. Slip op. at 2.

The Prosecutor’s Gamble.

February 3, 2009 | The Law Office of Philip D. Cave

United States v. Jones, No. 07-10289-MLW, 2009 U.S. Dis. LEXIS 6434 (D. Mass. 21 January 2009).*

Prosecutors do this all the time. Prosecutors either fail to provide discovery or do so in a slow-rolling fashion. As the recent decision in Jones illustrates, it’s a gamble. The gamble is that provided there is no showing of actual prejudice to the accused, there is no case related consequence, and possibly no personal consequence to the prosecution.

In Jones there is a history of discovery problems from that U.S. Attorneys Office. The appellant wanted to suppress evidence. The prosecutor objected to a suppression motion based on information provided by the police. The judge, fortunately for appellant, held the hearing. It was during the hearing that the failure to disclose Brady[1] material came to light.

More on Public Appellate Arguments.

February 3, 2009 | The Law Office of Philip D. Cave

The A.C.C.A. website now lists United States v. Rosas on it's argument schedule.

CAAFLog notes that the, "[Harvaad] web site doesn't provide any guidance as to members of the public

(including members of the military) without a Harvard i.d. would be

Appellate Argument Closed to Public?

February 3, 2009 | The Law Office of Philip D. Cave

Say it ain't so . . .

The Army Court of Criminal Appeals goes to Harvard Law School on 5 February 2009, to hear oral argument in a case that is closed to the public — or at least that's the perception. Information came our way a short while ago from an attorney practicing before that court, and now CAAFLog has identified the Harvaad calendar entry which raises the issue of public access.

You can note that the Court's own calendar doesn't show an oral argument until 19 February 2009. Could it be April yet? Halloween?

Post-trial delay.

February 3, 2009 | The Law Office of Philip D. Cave

In United States v. Remsburg, No. 20070161 (A. C.t. Crim. App. 30 January 2009), the court looked at three issues: whether the judge improperly restricted defense solicitation of favorable victim impact testimony; whether the judge was mean to the defense counsel; and post-trial delay. On the post-trial delay issue the court notes:

In his addendum, the SJA recommended the CA reduce appellant’s sentence by two months because “[a] two month reduction in the approved period of confinement should moot any issue regarding the post–trial processing of this case.” Without explanation, the CA did not adopt the SJA recommendation and approved the sentence as adjudged.

I was happy to read that the defense aggressively made demands for speedy post-trial processing. The appellant got his two months credit.

Consent to Search in the Military — Can You Really?

February 2, 2009 | The Law Office of Philip D. Cave

Well, according to the military appellate courts and law, a military member can consent to a search. However, is that realistic. The military is a society that follows orders. Can the circumstances surrounding the request for a consent search be so (objectively?) onerous as to make a refusal futile. I think so.

Remember how the suspect ends up being asked to consent to a search.

1. The COC tells the SM to be at the 1st Sergeant's/Shirt's office at a certain time.

Lying with Statistics and Research.

February 2, 2009 | The Law Office of Philip D. Cave

For many years I've had a small book on my shelf called How to Lie with Statistics first published in 1954. I see that it is now in a 1993 paperback edition, with pictures.

Darrell Huff, How to Lie with Statistics, W. W. Norton & Company (September 1993).

I am reminded of Mr. Huff's book by this entry on the Crime & Consequences blog which I follow for interesting news and usable information. I'll quote and paraphrase extensively from the entry so you'll understand why I am reminded of Mr. Huff. Here is Kent Scheidegger's, The Incredible Growing Statistic.