Court-Martial Trial Practice Blog

Three new SCOTUS grants of potential interest

January 13, 2017 | The Law Office of Philip D. Cave

The most potentially relevant is McWilliams v. Dunn, No. 16-5294, involves a question regarding the degree of independence needed for appointed mental health experts under Ake v. Oklahoma.

Then there are:

Weaver v. Massachusetts, No. 16-240: The defendant claims his lawyer was ineffective for failing to object to a closure of the courtroom during empanelment of the jury. Violation of the right to a public trial, when considered directly, is a “structural” error that is reversible without a showing that it actually prejudiced the defendant, but an ineffective assistance of counsel (IAC) claim requires a showing of prejudice under Strickland v. Washington. Does IAC require a showing of prejudice when the underlying error is “structural”? I believe Strickland is clear enough that the answer is “yes,” but there is enough of a circuit split for the high court to take it up.

A fence a structure does not make

January 13, 2017 | The Law Office of Philip D. Cave

The Court of Appeals for the Armed Forces has decided United States v. Wilson, __ M.J. __, No. 16-0267/AR, for the appellant. The issue was:

Whether the military judge erred in denying the defense motion for appropriate relief under Rule for Court-Martial 917 where the military judge improperly applied Article 130, housebreaking, to a motor pool.

A unanimous court found that the military judge erred.

Military justice news — from Arkansas

January 1, 2017 | The Law Office of Philip D. Cave

Courtesy of the Booneville Democrat we now know that

Several bills . . . are among a number of bill filings this week at the State Capitol in preparation for the 91st General Assembly regular session.

They include:

Deathly news

December 26, 2016 | The Law Office of Philip D. Cave

CBS news has picked up this:

A former Fort Bragg soldier who killed four women and raped others more than 25 years ago is again headed for execution.

The Fayetteville Observer reports Ronald Gray last week lost a battle to keep in place a federal court’s order issued eight years ago blocking his execution.

A chilling thought for all Air Force sexual assault trials?

December 23, 2016 | The Law Office of Philip D. Cave

“We thus readily conclude that ex parte communications between a military judge and an SVC are generally proscribed.”

Yes, inexplicably, it was necessary for the Air Force Court of Criminal Appeals (AFCCA) to decide such an issue, as part of deciding what impact, if any, SVC’s ex parte communications had in a trial–a chilling thought.

In United States v. Turner, (an Air Force case) the SVC decided to have a little confab with the military judge before trial, allegedly about administrative matters–until you read the facts.

Today history is prologue

December 22, 2016 | The Law Office of Philip D. Cave

On this date in 1894 Captain Alfred Dreyfus was convicted of treason by a French court-martial.

J’accuse. “[A] phrase made famous by Emile Zola in a public letter attacking the irregularities of the Dreyfus trial (published Jan. 13, 1898).”

The accusation was enough.

Are searches of a suspects cellphone too broad

December 21, 2016 | The Law Office of Philip D. Cave

We have all been there.

The unsophisticated suspect consents to the taking a search of their cell phone or computers.

Or, the MCIO get a search authorization.

Such Want of Ungentlemanly Conduct — Worth the Read

November 10, 2016 | The Law Office of Philip D. Cave

O’Keeffe, Eamonn (2016) ““Such Want of Gentlemanly Conduct:” The General Court Martial of Lieutenant John de Hertel,” Canadian Military History: Vol. 25: Iss. 2, Article 2. <Available at: http://scholars.wlu.ca/cmh/vol25/iss2/2>

At this court-martial of a junior officer, the British Army assembled 15 more senior officers to serve as the “jury” in the case. Today people whing about getting at least five officers in the same place.

If true, a disturbing practice in AF courts-martial involving SVC’s.

November 8, 2016 | The Law Office of Philip D. Cave

The SVC also testified at the post-trial Article 39(a), UCMJ, session. When asked by the trial defense counsel if it was the “standard in practice as an SVC to meet with the military judge ex parte,” the SVC stated, “Generally, yes. We’re usually not included in [R.C.M.] 802 conferences, so generally the judge will speak with us, kind of one-on-one, sometimes before the trial begins and discuss just kind of administrative matters.” The SVC did not recall having a post-trial feedback session with the military judge.

Slip op. at 2.

In United States v. Turner, the AFCCA had several issues before it, two being:

Appellate (and trial) advocacy

October 29, 2016 | The Law Office of Philip D. Cave

John Wesley Hall’s website is an excellent resource for issues involving the Fourth Amendment–FourthAmendment.com. In pointing to a search warrant case Mr. Hall quotes from the opinion.

We remind McCollum’s counsel that “the statement of facts in an appellate brief should be a concise narrative of the facts stated in accordance with the standard of review appropriate to the judgment and should not be argumentative.” King v. State, 799 N.E.2d 42, 45 n.2 (Ind. Ct. App. 2003) (citing Ind. Appellate Rule 46(A)(6)), trans. denied (2004), cert. denied. Also, we disapprove of counsel’s accusation that the State has “stoop[ed]” to “desperate measures … to attempt to demonstrate the reliability and credibility of the confidential informant” mentioned in the affidavit and has “either played word games with this court or simply fabricated facts in its efforts to make an argument.” Reply Br. at 10, 11. Such hyperbolic barbs have no place in an appellate brief. Cnty. Line Towing, Inc. v. Cincinnati Ins. Co., 714 N.E.2d 285, 291 (Ind. Ct. App. 1999), trans. denied (2000).

McCollum v. State, 2016 Ind. App. LEXIS 370 (Sept. 30, 2016).