Court-Martial Trial Practice Blog

Ban the ban on extrinsic impeachment evidence

November 2, 2014 | The Law Office of Philip D. Cave

Professor Imwinklried has an excellent article advocating banishment of the ban on extrinsic evidence to impeach under Federal (Military) Rule of Evidence 608(b) (MRE). Prof. Imwinkleried questions why the ban is necessary and may in fact encourage perjury on the part of a testifying witness.

Professor Kevin Cole has an excellent summary of the article at CrimProfBlog.

Edward J. Imwinkelried, Formalism versus Pragmatism in Evidence: Reconsidering the Absolute Ban on the Use of Extrinsic Evidence to Prove Impeaching, Untruthful Acts that Have Not Resulted in a Conviction, UC Davis Legal Studies Research Paper No. 396, University of California, Davis – School of Law, September 14, 2014.

Being drunk and being incapacitated aren’t the same

November 1, 2014 | The Law Office of Philip D. Cave

Being drunk and being incapacitated aren’t the same – no matter how hard military sexual assault trainers try to convince you otherwise. Such training is not just wrong – it is – IMHO – knowingly false.

Which brings us, finally, to the drunk sex issue. So, is Sokolow suggesting that all women who say they were raped while they were drunk were not really raped? He is not. “If there’s a no, I don’t care if there’s alcohol involved, it’s rape. What I’m saying is the fact that a woman was drunk can’t be the sole criteria for whether she was raped or not,” Sokolow explains, “and frankly, a lot of schools were getting this wrong. There is a vast difference between drunk and incapacitated.”

Brett Sokolow, Meet the Man Telling Colleges How to Fix Their Rape Problem, The Cut, 21 October 2014.

Prosecutorial error and best practices

October 29, 2014 | The Law Office of Philip D. Cave

It’s never too early to plan for interesting upcoming events. So, you ought to set-aside 12-13 June 2015, especially if you will be in the Arlington, VA area on those days.

The Center for Prosecutorial Integrity will have its Second Innocence Summit.

Proceedings will take place at the Crowne Plaza Hotel, Washington National Airport, 1480 Crystal City Drive, Arlington, VA 22202.

IAC by not filing motions

October 18, 2014 | The Law Office of Philip D. Cave

Can a failure to file a pretrial motion equal ineffective assistance of counsel? The BLUF is yes in some cases. In some instances I have argued IAC on appeal for failing to make a meritorious motion. The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue. The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King. The issue of IAC for failure to raise a pretrial motion is neither novel nor rare. Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion. I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges. A more common issue is a motion to suppress, or speedy trial, or UCI.

Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue: [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”

Erotic asphyxiation-the choking game

October 17, 2014 | The Law Office of Philip D. Cave

Some years ago I represented a Soldier accused of multiple assaults and rapes of his wife, and of his girlfriends. The rapes allegedly included him choking the complaining witness during the rapes.

He told me – and later the members at his court-martial – that he and his wife consensually engaged in choking during sex as part of rough sex because she liked it. At the time I was already aware of autoerotic behavior, so this didn’t seem too off-the-wall to me as a potential defense. Almost all forensic pathology and death investigations texts have a section on the deadly act of autoeroticism. So I researched “choking during sex” and came across quite a bit of research and current research about the “choking game,” and “erotic asphyxiation.” There is confusion over application ofthe term and the scope of the behavior. There is even a website that describes why, in the writer’s view, women like to be choked during sex, and how to do it properly. Like autoeroticism, the choking game can be deadly or cause serious harm.

Since that case I have had a number of cases where the complaining witness alleges she was choked while being raped, and I have investigated that as a possible defense. I have several appeals now where this issue is clearly presented. But in each of these appellate cases the defense counsel ignored or pooh-pooed the idea that the client was telling the truth about rough sex involving choking and so may have missed a potentially valid defense.

In the Supremes-Ohio v. Clark-watch for it

October 4, 2014 | The Law Office of Philip D. Cave

On 2 October, the Supreme Court granted certiorari in a case that might have important ramifications for military justice – Ohio v. Clark. And it is a source for potential motions going forward, regardless of CAAF’s recent Squire opinion. Here is the question presented.

Whether an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.

So you can see where I am going.

That’s him!

October 3, 2014 | The Law Office of Philip D. Cave

Your weekend reading program.

Many, many, many years ago, as a police officer I had attempted to arrest a suspect who successfully got away. Some days later, I saw a CID officer bringing in a person to the station – and I said, “that’s him.” It wasn’t, I was wrong.

My first general court-martial in 1980 was a contested double armed robbery. We had extensive litigation over a classic “show-up” at the crime scene. The client was restrained in a police car, the victim was brought over to look at him and identified him. That hard fought motion was lost. (I actually remember this case as my first “war story” in the defense trenches for other reasons – for example when the client gets in a fight with four chasers in front of the members. My quickest not guilty finding was less than five minutes, this was my quickest guilty finding – less than 15 minutes.)

Stacked deck

October 1, 2014 | The Law Office of Philip D. Cave

The Coast Guard has an interesting opinion in United States v. Sullivan, on a members panel stacking.

A military accused does not have the same “jury” right as a civilian accused, but he does have the right to a panel (jury) that is fair and impartial. United States v. Roland, 50 M.J. 66, 68 (1999); United States v. Nash, 71 M.J. 83 (C.A.A.F. 2011). Oddly, and unlike the civilian case, it is the person who orders the trial who gets to select who will decide the case he has referred to trial. The commander cannot systematically or for bad motive select a panel likely to be biased in some way toward an accused. For example, a person who believes that all convicted accused’s must be punitively discharged. The primary engine for challenging members once appointed is through voir dire, and then showing actual or implied bias. United States v. Gooch, 69 M.J. 353 (C.A.A.F. 2010).

This is the second Coast Guard panel challenge case in just a short period. United States v Riesbeck has been examined here, by colleague Sam Adams. Riesbeck may be viewed as a “normal” issue of panel stacking. Panel stacking questions often arise with rank or gender of the selected members. There is the anomalous case of volunteerism in United States v. Dowty, 60 M.J. 163 (C.A.A.F. 2004), [1] which joins Sullivan as being an oddity – serious, but odd.

Worth the read

September 20, 2014 | The Law Office of Philip D. Cave

Here are a couple of articles worth the read if you have some time this weekend.

The Reliability of Assault Victims’ Immediate Accounts: Evidence from Trauma Studies, Melissa Hamilton, University of Houston Law Center, September 7, 2014, Stanford Law & Policy Review, Vol. 26, 2015, Forthcoming

Ms. Leveritt has recently taken on the responsibility of Director of the Center for Prosecutor Integrity‘s Wrongful Convictions Academy, which is brand new, and is just spinning up. See Prosecutors Have All the Power. This article is Arkansas-specific, it may likely be applied nationwide.

A mixed but really good result?

September 14, 2014 | The Law Office of Philip D. Cave

Update 15.9.14.

Here is a link to the government notice of an intent to appeal, and a motion I have filed with the ACCA.

So, client is a medical provider initially accused of committing sexual contact by a, “fraudulent representation that the sexual contact served a professional purpose.”