Court-Martial Trial Practice Blog

A word to the unprepared

June 2, 2016 | The Law Office of Philip D. Cave

Here’s an interesting summary disposition from CAAF.

No. 16-0468/AR. U.S. v. James H. Lee. CCA 20140309. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of the conflicting affidavits between Appellant and his trial defense counsel, we conclude that the Court of Criminal Appeals erred when it failed to order a factfinding hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding Appellant’s allegations that his trial defense counsel was ineffective in failing to identify and investigate potential mitigation evidence for the presentencing hearing. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS DEFENSE COUNSEL FAILED TO IDENTIFY AND INVESTIGATE POTENTIAL MITIGATION EVIDENCE.

A word to the unwise

May 31, 2016 | The Law Office of Philip D. Cave

Recently, in United States v. Marsh, No. 38688 (A.F. Ct. Crim. App, Apr. 19, 2016), the (unnamed and not me or several of my closest friends) civilian defense counsel was held in contempt for late filing of a motion. It appears this was not the first time in the case for the same counsel of missed deadlines. The decision drew some angst among the military justice literati. Based on the facts as written in the opinion, I’m not troubled by the decision. We must wait a few weeks to see whether the appellant will petition CAAF (will let you know).

Today I’m reading and reviewing a new record of trial (Air Force as well). It appears the defense filed a significant motion the day before trial. The prosecution asserted they were not prejudiced by the late filing. The military judge had this to say.

MJ: Understood. This seems part of a disturbing trend of counsel thinking that the week before trial is the time to begin case preparation. I’ve also heard this in the context of a request for continuance or docketing request that counsel feel the need to, as of right, have a week on site before every case, and I’ll just remind counsel that case preparation is an ongoing endeavor that should begin when the evidence is received, if not beforehand, and I really see no valid excuse for failure to file these motions in a timely manner. That being the case, as I stated, it’s just fraught with appellate peril for me to impose any sanction of any sort, so I find it somewhat amusing that I read comments from defense counsel saying that we don’t do enough to hold trial counsel’s feet to the fire when they violate discovery obligations, but correspondingly, the defense counsel basically has carte blanche, absent me pulling out the extreme contempt gavel, to ignore the scheduling orders of the court. And so it’s with great consternation that I will not impose any sanction at this point. The accused should not be the one who has to suffer for his dilatory counsel.

Just a reminder–IAC possibly on sentencing

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

We tend to focus on IAC issues to do with the merits, which on occasion includes a failure to investigate. Here is a CAAF reminder, to us andACCA.

No. 16-0468/AR. U.S. v. James H. Lee. CCA 20140309. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of the conflicting affidavits between Appellant and his trial defense counsel, we conclude that the Court of Criminal Appeals erred when it failed to order a factfindinghearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding Appellant’s allegations that his trial defense counsel was ineffective in failing to identify and investigate potential mitigation evidence for the presentencing hearing. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS DEFENSE COUNSEL FAILED TO IDENTIFY AND INVESTIGATE POTENTIAL MITIGATION EVIDENCE.

Sexual assault and law of war-worth the read

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

Something here for the downrange SJA/BJA.

You’ll remember this:

Joseph Goldstein, U.S. Soldiers Told to Ignore Sexual Abuse of Boys by Afghan Allies, N.Y. Times (Sept. 20, 2015),http://nyti.ms/1KrOuSM.

It’s hearsay-worth the read

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

Captain John S. Reid, as this “Is It Hearsay? A Practical Primer,” in 43 The Reporter, No. 2 (2016), for a quick and good review of the various hearsay rules.

Borderline personality disorder

May 27, 2016 | The Law Office of Philip D. Cave

Compulsive lying, or mythomania, can be common in people with Borderline Personality Disorder.

ClearviewTreatment, Borderline Personality Treatment.

Diagnosed, suspected?

2016 MCM Executive Order

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

The President has signed an Executive Order amending the Manual for Courts-Martial (which includes the rules of evidence) for 2016.

Of significance, it will be even harder to challenge the admission of “confessions” or “admissions” of the accused.

The current rule states that: “evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused” if the accused makes a timely objection and has an adequate privacy interest. Mil. R. Evid. 311(a) (2015). The new rule adds the following:

Thought for the day

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

My good friend Gene Fidell recently posted this thought:

New York County Surrogate Gideon J. Tucker wrote 150 years ago: “No man’s life, liberty or property are safe while the Legislature is in session.” Here’s a thought about Congress at work in 2016.

His note is in relation to major (and minor) suggestions for change in military justice practice. In his blog post he observes:

The minutiae and such

May 24, 2016 | The Law Office of Philip D. Cave

Well I see the FOIA site is up in Bergdahl per the MJ’s order.

https://www.foia.army.mil/ReadingRoom/Detail.aspx?id=103

There’s the normal minutiae for early appellate exhibits, the EDN for example.

Exhaustion

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

I have commented on this before–post-CAAF habeas corpus, but a new case from the 9th is time for a reminder.

Narula v. Yakubisin (CO, NAVCONBRING Miramar), No. 15-55658 (9th Cir. 17 May 2016).

It is common for the military appellant to think about federal court once their military appeal is complete. The route to federal court is through a federal habeas corpus proceeding, in accordance with 28 U.S.C. § 2241. It is rare to get past a motion to dismiss, let alone win on the merits.