Court-Martial Trial Practice Blog

Recovered memory-or-making it up?

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

The Navy-Marine Corps Court of Criminal Appeals recently, in United States v. D.W.B., __ M.J. ___ (N-M Ct. Crim. App. 2015), had to decide “a complex and controversial topic: the admissibility of a witness’s testimony regarding memories recovered through a psychotherapeutic approach known as Eye Movement Desensitization and Reprocessing (EMDR).” Slip op. at 2.

BLUF: the military judge did not abuse his discretion in concluding that KB’s testimony was the product of a tainted and highly suggestive psychological process, and therefore inadmissible.

In Coker v. Georgia, 433 U. S. 584 (1977), the Supreme Court held that the Eighth Amendment bars the use of the death penalty as punishment for the rape of an adult woman, where there is no homicide. The question was left open about a non-homicide rape of a child.

More on prosecutorial discretion-and why discovery is important

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

Observer Media asks:

When will they ever learn? Ninth Circuit Judge Alex Kozinski declared months ago in a much-quoted opinion that there is “an epidemic of Brady violations abroad in the land.” And yet, prosecutors continue to deny there’s a problem. Indeed, the Department of Justice gets outright indignant at the suggestion, and so do many state court prosecutors. They bristle at the very mention of the possibility.

But here’s another doozy: The People (of California) v. Efrain Velasco-Palacios. In this unpublished opinion from the Fifth Appellate District, the California Court of Appeal reveals that state prosecutors and California Attorney General Kamala Harris continue to be part of the problem. Kern County prosecutor Robert Murray committed “outrageous government misconduct.” Ms. Harris and her staff defended the indefensible—California State prosecutor Murray flat out falsified a transcript of a defendant’s confession.

Worth the read

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

United States v. D.W.B.

Government charging-lack of preparation and caring

February 28, 2015 | The Law Office of Philip D. Cave

Unusual for me, but I did a guilty plea case this week.

Going in to the case and throughout the case the client was accused of a lot of offenses, some of which were a course of conduct over a period of time. Not unusual, right, so we had some right and left dates.

So, you are dealing with a government that takes the view you plead to this – X Y Z – or no deal. You get to the point where you say fine. You and the client take the deal.

Army 32 Procedures

February 26, 2015 | The Law Office of Philip D. Cave

Army Directive 2015-09 (Implementation of Section 1702 of the NDAA for FY14) Article 32 UCMJ Preliminary Hearing

Here are Army procedures in which they attempt to regulate “new” Article 32 hearings.

I’ll leave it to you to decide if they are:

Distinguish between volition and memory-lack of memory doesn’t mean lack of volition

February 22, 2015 | The Law Office of Philip D. Cave

The version of the facts contained in the majority opinion is far more convincing than are the facts contained in the record of trial.

It is not unusual for an appellate opinion to be selective in reciting the facts of a case relevant to the decision. This can be attributed to several factors, most of the factors are benign and unintended, sometimes a cynic might argue the facts cited are deliberately selective. But here is the relevant part of the dissent for counsel’s takeaway in alcohol related sexual assault cases. The noted confusion must be addressed with the fact-finder through evidence perhaps, and certainly through argument.

It appears to me that the parties at trial misunderstood the relationships between volitional behavior, consent, mistake of fact as to consent, intoxication, and lack of memory. The question is not whether the alleged victim remembers what happened, but whether she participated in the sexual activity of her own volition at a time when she had too much to drink. Chief Judge Everett‘s concurring comments United States v. Baran, 22 M.J. 265, 270 (C.M.A. 1986), are directly applicable to this case:

Cell tower positioning

February 21, 2015 | The Law Office of Philip D. Cave

It has been some time since I’ve had a case where it was necessary to have “cell tower” evidence to “locate” the client.

Here is an interesting piece in The New Yorker.

On May 28th, Lisa Marie Roberts, of Portland, Oregon, was released from prison after serving nine and a half years for a murder she didn’t commit. A key piece of overturned evidence was cell-phone records that allegedly put her at the scene.

Collateral consequences of being Titled

February 21, 2015 | The Law Office of Philip D. Cave

As many of you know, when CID/NCIS/OSI/CGIS starts an investigation into you they make a record. The subject line is your name plus other information. This is what is know as being “Titled.”

That information is submitted to NCIC as the equivalent of an arrest – even though you were not arrested, told you were arrested, or placed in custody. The Titling, plus the taking of fingerprints and photographs gets you into the database, and you aren’t getting out for 40 years.

Here is a 2000 DoDIG report.

Overcharging conspiracy

February 21, 2015 | The Law Office of Philip D. Cave

It is routine for military prosecutors to overcharge in courts-martial. They feel the more they can pile on the worse it makes the accused look. So that’s why you might see a charge of murder along with a charge of spitting on the side-walk.

One of the areas of frequent abuse is the use of inchoate crimes – primarily here conspiracy. The Army Court of Criminal Appeals has just issued an opinion in a case I defended at trial a couple of years ago. The case was tried in 2012, and the first stage of appeal was decided in February 2015. The next stage is CAAF.

In United States v. Willis, we had objected at trial to a conviction on multiple conspiracies, but the trial judge denied our motion. The prosecution had it’s way in overcharging on this issue. But that didn’t pass muster with the appeals court. In ruling for the defense the court repeated basic principles.

Using SVC statements against. . .

February 13, 2015 | The Law Office of Philip D. Cave

Teaching point about SVC’s and how the defense may be able to use them to the benefit of the defense.

Not too long ago I had a SVC making oral argument on a MRE 412 motion.

During the course of the SVC presentation it occurred to me that she was representing facts AND statements of the complaining witness which were inconsistent with other statements of the complaining witness.