Court-Martial Trial Practice Blog

The Burris trial

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

The Army JAG Corps has been rocked with some significant sexual assault allegations. One of them involved Major Erik Burris, who until last year was the Chief of Justice (senior prosecutor) at Fort Bragg, NC. He has now been convicted himself of various sexual assault allegations, and has been sentenced to serve 20 years confinement as part of his punishment.

The charges: two counts of rape, four counts of assault and one count each of forcible sodomy and disobeying an order from a superior commissioned officer. Burris was cleared of four counts of assault and two counts each of sexual assault, forcible sodomy and communicating a threat.

I wonder if the members of his court-martial were aware of his comments about sexual assault prosecutions, which arose from in court testimony in two unrelated cases.

Less rapes nationwide

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

The FBI reports that allegation of rapes (revised definition) declined 10.1 percent, in the first half of 2014.

A reminder to appellate counsel

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

No. 14-0660/AR. U.S. v. Michael C. Budka. CCA 20120435. On further consideration of the granted issues (74 M.J. __ (C.A.A.F. Oct. 23, 2014)), and the briefs of the parties, we first conclude that the United States Army Court of Criminal Appeals did not abuse its discretion and did not violate the principle of party presentation, as outlined in Greenlaw v. United States, 554 U.S. 237, 243-44 (2008), when it summarily affirmed the finding of guilty to the offense of aggravated assault after the Government conceded that the factual predicate for that offense had not been met. Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), the Court of Criminal Appeals may affirm only such findings of guilty as it finds correct in law and fact, and “[i]n considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.” These factfinding powers are “unparalleled among civilian appellate tribunals,” and the decision in Greenlaw did not take those powers into consideration. United States v. Baker, 28 M.J. 121, 122 (C.M.A. 1989). Neither the Court of Criminal Appeals, nor this Court, is bound by government concessions. See United States v. Emmons, 31 M.J. 108, 110 (C.M.A. 1990); United States v. Hand, 11 M.J. 321, 321 (C.M.A. 1981); United States v. Wille, 9C.M.A. 623, 627, 26 C.M.R. 403, 407 (1958); United States v. McNamara, 7 C.M.A. 575, 578, 23 C.M.R. 39, 42 (1957); United States v. Patrick, 2 C.M.A. 189, 191, 7 C.M.R. 65, 67 (1953).

Prosecutor discipline?

January 24, 2015 | The Law Office of Philip D. Cave

Remember Napue v. Illinois, 360 U.S. 264 (1959)? Here’s the Justia summary.

At petitioner’s trial in a state court in which he was convicted of murder, the principal state witness, an accomplice then serving a 199-year sentence for the same murder, testified in response to a question by the Assistant State’s Attorney that he had received no promise of consideration in return for his testimony. The Assistant State’s Attorney had in fact promised him consideration, but he did nothing to correct the witness’ false testimony. The jury was apprised, however, that a public defender had promised “to do what he could” for the witness.

The failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment. Pp. 360 U. S. 265-272.

Worth your read-pretrial agreements

January 24, 2015 | The Law Office of Philip D. Cave

Military law and practice requires that any pretrial agreement discussions be conducted between the defense, the prosecutors, and the convening authority. The military judge is not allowed to be involved. The military judge’s involvement is during trial when she reviews a PTA with the accused to ensure it is all transparent and that it’s terms do not offend law or significant policy considerations. Historically, courts have been reluctant to permit agreements to incorporate terms that deprive an accused of basic fundamental rights. See e.g., United States v. Callahan, 22 C.M.R. 443 (A.B.R. 1956); United States v. Cummings, 38 C.M.R. 174, 177 (C.M.A. 1968); and United States v. Schmeltz, 1 M.J. 8 (C.M.A. 1975). R.C.M. 705 specifically lists examples of permissible and impermissible terms in a pretrial agreement.

The Court of Military Appeals in United States v. Schaffer, 12 M.J. 425, 428 (C.M.A. 1982) opened the door to non-traditional bargained for PTA provisions when it expressly acknowledged a judicial willingness to accept more complex PTAs, especially when the proposed term is proposed by the accused and his defense counsel. For some odd terms the courts don’t like:
An agreement providing for a reduction of the accomplice’s confinement sentence by one year for each occasion that the accomplice testified against his co-accused. The court in United States v. Scoles, 33 C.M.R. 226, 232 (C.M.A. 1963) held that the agreement “offered an almost irresistible temptation to a confessedly guilty party to testify falsely in order to escape the adjudged consequences of his own misconduct.”

Worth the watch –

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

Is it IAC

January 19, 2015 | The Law Office of Philip D. Cave

The Court of Appeals for the Armed Forces has granted a petition on the following issue:

WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE WHEN DEFENSE COUNSEL FAILED TO INTRODUCE EVIDENCE WHICH STRONGLY CORROBORATED THE DEFENSE THEORY THAT THE ALLEGATIONS IN THIS CASE WERE FALSE.

Here is a link to the AFCCA opinion in United States v. McIntosh, ACM 37977, 2014 CCA LEXIS 29 (A. F. Ct. Crim. App. January 17, 2014).

More bullets for you less for the enemy

January 18, 2015 | The Law Office of Philip D. Cave

Sgt. Maj. of the Army Ray Chandler announced this week that senior enlisted personnel would be rated on their ability to police online social media activity, in what many are nicknaming the “Facebook bullet” on the non-commissioned officer report (NCOER).

So reports Duffelblog. I’ve always been of the view that there is a little or a lot of truth underlying humor. The truth here is that the military has a problem with social media postings. And so the joke is that part of the media management is to be critical of those who use social media – at times making it criminal, even to the extent of holding a member accountable for what their spouse or family member says online. In my view this may border very closely on affecting a persons constitutional right to speech. I’m well aware that there are limitations on a military members right to speak. So let’s hope we don’t get another report bullet to micromanage. Where is that line. But on to something perhaps more relevant.

The act of laughing at a joke is the result of a two-stage process in the brain, first detecting an incongruity before then resolving it with an expression of mirth. The brain actions involved in understanding humor differ between young boys and girls. These are the conclusions reached by a US-based scientist supported by the Swiss National Science Foundation.

Worth the read for your weekend

January 16, 2015 | The Law Office of Philip D. Cave

“[W]e recognize that electronic communications are susceptible to fabrication and manipulation.”

Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012). Campbell and a number of other state and federal cases were support for my objection to text messages in a case this week. I had a 120 which as usual had text messages as evidence by the prosecution – and I objected to authenticity. Without going in to all of the facts, here are a few I thought relevant.

The CW had dropped her phone in the bath tub and it was no longer available for forensic examination. In my last seven 120 cases this is the second bathtub-drop, along with two drop-and-breaks and one turn it in. I’m beginning to get suspicious of what CW’s are being told once the photo of the text is cherry-picked and turned in.

Social media as evidence

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

Professor Colin Miller has published two timely and important essays related to the introduction of social media evidence for its truth.

Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay, 71 Wash. & Lee L. Rev. Online 180 (2014). Here is the abstract:

The rule against hearsay covers a statement offered to prove the truth of the matter asserted but does not cover a statement offered for another purpose. Meanwhile, the Best Evidence Rule states that a party seeking to prove the content of a writing, recording, or photograph must produce the original or account for its nonproduction. Does this mean that the Rule is inapplicable when a party seeks to prove something other than the truth of the matter asserted in a writing, recording or photograph? Most courts have answered this question in the affirmative. This essay argues these courts are wrong.