Court-Martial Trial Practice Blog

A question of judge and jury impartiality–conflict

November 20, 2015 | The Law Office of Philip D. Cave

The petition for a writ of certiorari has been filed in Sullivan v. United States, CGCMG 0285 (C.G. Ct. Crim. App. 25 September 2014)(unpub.), 74 M.J. 448 (C.A.A.F. 2014).

Not CSI, but is it even close

November 17, 2015 | The Law Office of Philip D. Cave

We all laugh at TV shows and movies which we think of as fantasy. The CSI shows, NCIS, JAG, among . We ..get a laugh out of them. But reality may make you cry.

Nathan J. Robinson, Forensic Pseudoscience: The Unheralded Crisis of Criminal Justice. Boston Review, November 16, 2015.

This past April, the FBI made an admission that was nothing short of catastrophic for the field of forensic science. In an unprecedented display of repentance, the Bureau announced that, for years, the hair analysis testimony it had used to investigate criminal suspects was severely and hopelessly flawed.

ALAS, POOR TRUTH, WE KNEW YOU

November 17, 2015 | The Law Office of Philip D. Cave

My title is the title of an excellent article in the Air Force Reporter by Thomas G. Becker.

Mr. Becker takes on the amount of damage done to military justice and the truth-seeking process because of the changes to Article 32 proceedings.

Can DNA really prove much?

November 7, 2015 | The Law Office of Philip D. Cave

“[I]t is relatively straightforward for an innocent person’s DNA to be inadvertently transferred to surfaces that he or she has never come into contact with. This could place people at crime scenes that they had never visited or link them to weapons they had never handled.”

In discussing United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015), a good friend had this to say about the case and about DNA examinations which are common in military sexual assault cases.

There are many problems with this opinion.

He notes that:

The KC lab has had problems in the past relevant here, e.g., “chain-of-custody,” sealing and storage issues as noted HERE, staffing issues, noted HERE, etc.

He notes then the general purpose behind evidence such as DNA results.

The logical and legal purpose of using DNA evidence is to do one of two things: either match the DNA to a specific individual, or to exclude someone from the universe of potential matches. The DNA “results” in this case can do neither, so therefore, how can they be relevant under MRE 401? To “conclude” that the Accused could “not be excluded” is a nonsensical statement – other than the sample was too small to draw any scientific conclusions – which is after all why DNA testing is done in the first place.

Indeed, as the FBI itself states:

Recording while having sex

November 6, 2015 | The Law Office of Philip D. Cave

Because of the current politics surrounding sexual assaults in the military, some are wondering what they can do in advance to avoid a later false claim of sexual assault. This has lead to a suggestion that the interactions should be video recorded, the idea being that the recording will later be evidence to defend against a false report.

Well, that doesn’t take care of the issue about the potential crime involved. If the recording is done with knowledge and consent, that probably is defensible. But what if it isn’t. Many states now have statutes prohibiting unknowing or nonconsensual recordings. As does the federal government in 18 U.S.C. 2251(a). Now what.

See United States v. Palomino-Coronado, a decision of the Fourth.

SAPR—suppression of dissent?

November 6, 2015 | The Law Office of Philip D. Cave

Naval Academy Professor Sues Navy Over Free Speech

This reports Military.com:

A civilian professor at the U.S. Naval Academy is suing the Navy, accusing it of violating his First Amendment right to free speech and chilling academic freedom.

NCIS violates the Posse Comitatus Act–no problem

November 6, 2015 | The Law Office of Philip D. Cave

United States v. Dreyer. A decision from the Ninth.

On issues arising from the Posse Comitatus Act (PCA), the en banc court affirmed the district court’s denial of a suppression motion, and remanded to the three-judge panel for consideration of remaining issues, in a case in which the defendant was convicted of one count of distributing child pornography and one count of possessing child pornography.

A special agent of the Naval Criminal Investigative Service (NCIS) conducted an investigation into computers in Washington state sharing child pornography by utilizing a software query that encompassed the entire state but did not isolate or look for military service members. The investigation revealed that the defendant, a civilian, had shared child pornography files, and the NCIS passed that information along to the local police department.

Pinkela update

November 5, 2015 | The Law Office of Philip D. Cave

Today, 5 November 2015, the Court of Appeals for the Armed Forces granted our petition in United States v. Pinkela, reversed the findings for aggravated assault and reckless endangerment, and affirmed a lesser included offense of assault and battery.

United States v. Pinkela, ACCA — I.

U.S.C.A.A.F. — I. This was a summary disposition with a remand to consider the case in light of United States v. Guitierrez.