Court-Martial Trial Practice Blog
Riley v. California. An important ruling today.
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Reversal rate on appeal
If you are concerned or unhappy with the high rate of “affirmed” – often without relief – U.S. courts-martials, perhaps you should consider moving to India.
My good friend and colleague Gene Fidell at globalmjreform.blogspot.com/, reports on the 90% rate of reversal of court-martial convictions.
Further to yesterday’s post this article from the Times of India reports that the High Court has set aside decisions of the Armed Forces Tribunal about 90% of the time since the Delhi High Court decided in 2011 that AFT decisions were subject to review in the High Court as well as directly by the Supreme Court.
I object, well I thought I did
Eighth Circuit reviews whether a challenged evidence ruling by the trial court was properly preserved for appeal under FRE 103(b); the issue turned on whether the trial court’s ruling was “tentative” or “definitive”; the objecting party holds the burden to clarify the nature of the ruling, in United States v. Young, _ F.3d _ (8th Cir. May 23, 2014) (Nos. 12-2527, 12-2593).
I have made this point before about objections. You do an excellent job of making the objection, but did you actually preserve it. Most judges will give you a direct definitive answer on your objection. Some however, deliberately or otherwise punt the ruling. If you get a definitive ruling then the objection is made and preserved. If you get punted, you MUST make the objection again, or as in Young here, you have to pin the judge down.
The consequences of failing to preserve an evidence issue for appeal can be fatal. Either the issue may be waived or it may be reviewed for plain error under FRE 103(e). Under FRE 103(b), addresses the circumstances in which a party needs to renew an objection at trial: “Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” the application of this rule was recently reviewed by the Eighth Circuit.
Drug induced psychosis as a defense
Reports regarding an Irish court-martial and litigation involving Lariam are most interesting. Partly because of a case pending decision in the United States Court of Appeals for the Armed Forces.
The Irish Times reports that:
Taoiseach Enda Kenny has defended the Army’s continued use of the controversial anti-malaria drug Lariam, five years after the US military which pioneered the drug dropped it in the face of health concerns and legal actions from members of the military.
More Grosty
The other day I commented about Grostefon issues. Well, here is another example of Grostefon possibly working for the Appellant.
On Thursday CAAF granted review in the Air Force case of United States v. Yanez:
No. 14-0411/AF. U.S. v. Joseph W. YANEZ. CCA 38181. Review granted on the following issue:
Worth the read
Safeguarding the Commander’s Authority to Review the Findings of a Court-Martial, Andrew S. Williams, Brigham Young University, June 5, 2013, 28 BYU Journal of Public Law (April 2014, Forthcoming)
Abstract:“Do you really think that after a jury has found someone guilty, and dismissed someone from the military for sexual assault, that one person [the commander], over the advice of their legal counselor, should be able to say, ‘Never mind’?” Senator Claire McCaskill recently posed this question in a hearing before the Senate Armed Services Committee, as she and others expressed outrage over the disapproval of a sexual assault conviction by a military commander. Her question reflects a justifiably profound respect for the verdicts of juries, one that runs deep in American legal tradition, but reveals a basic misunderstanding about the court-martial panel in the military.
Leaders must watch their words on military sexual assault
Most are now familiar with the NMCCA decision in United States v. Howell. In that case, compared to several others, the court found there was UCI affecting the trial and granted the appeal in Howell’s favor. Howell is not out of legal jeopardy, because the court decided:
A rehearing may be ordered.
And it is reported that Howell is still in pretrial confinement., while a decision is made on whether to conduct a retrial or administratively separate him with an OTH.
An update on the Pendleton search case
I posted at CAAFLog about a search conducted in the defense counsel offices at Camp Pendleton.
Here Marine Corps Times reports some of the fallout, including it looks like one of the photos we put up on CAAFLog.
In the wake of a controversial search of Camp Pendleton, California, defense attorneys’ offices by military investigators, the senior Marine prosecutor who planned the search has been ordered off a number of cases and reassigned to a new job.
Grosty
I have commented before that an Appellant sometimes gets a grant on a Grostefon issue, and sometimes wins something.
Unfortunately for Cerion R. ALLEN, he got a Grosty grant, but the victory was Pyrrhic.
No. 14-0519/AR. U.S. v. Cerion R. ALLEN. CCA 20120742. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we agree with Appellant’s personally asserted contention that the facts established during the plea inquiry and in the stipulation of fact demonstrate only a single conspiracy. Appellant was convicted of one conspiracy to commit robbery (Specification 2 of Charge II) and one conspiracy to commit burglary (Specification 3 of Charge II), but the plea inquiry and stipulation of fact show that there was only one agreement between Appellant and his co-conspirators to break into and rob the alleged drug house. Therefore, Specification 3 of Charge II should be consolidated with Specification 2 of Charge II to become a single specification. See United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000); United States v. Reliford, 27 M.J. 176 (C.M.A. 1988) (summary disposition). Although the conspiracy offenses are consolidated, we are satisfied that Appellant suffered no prejudice as to his sentence. Accordingly, it is ordered that said petition is granted on the following personally asserted issue[.]
A resource
On a historical note – – –
On 20 May 2014, the DOD released a copy of “Final report and recommendations from Defense Department (DoD) Good Order & Discipline Panel, 1997-1998.”
Of the many places on the web to find information, governmentattic.org posts its DOD related FOIA releases here.