Court-Martial Trial Practice Blog

Make it clear, get it in writing, litigate it

September 19, 2012 | The Law Office of Philip D. Cave

The NMCCA has issued an unpublished opinion in United States v. Belcher. This case has lessons for the defense and the prosecution.

It appears the defense offered a PTA for nine months and included offers to testify against co-conspirators. The PTAO languished. Then, “a second trial counsel contacted the appellant’s defense counsel because he was prosecuting one of the appellant’s co-conspirators, and he wanted the appellant to be a Government witness in that case.” The TC then provided the DC with a grant of immunity and order to testify. The Appellant testified for the prosecution, “but the CA never [still had not] accepted the 9-month offer [at the time].” Later a PTA for 12 months was negotiated.

It appears from the opinion that the fundamental problem stems from poor communications and a lack of documentation.

Standard motion in CP cases

September 18, 2012 | The Law Office of Philip D. Cave

Here, from Prof. Berman TG at Sentencing Law & Policy is a reminder about evidence in CP cases. I think most of us already do this, and a number of prosecutors already think of this.

A notable Third Circuit panel ruling today in US v. Cunningham, No. 10-4021 (3d Cir. Sept. 18, 2012) (avalable here), highlights the challenges (and the truly disgusting nature) of some federal child pornography prosecutions. Here is how the lengthy opinion gets started:

David Cunningham appeals the September 27, 2010 judgment of the United States District Court for the Western District of Pennsylvania sentencing him to 210 months’ imprisonment and 20 years’ supervised release based on his conviction for the receipt and distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2). At trial, the District Court allowed the government, over Cunningham’s objection, to show the jury two videos containing seven different video clips totaling approximately two minutes as a sample of the child pornography that gave rise to the charges. Cunningham contends that, because the Court permitted the videos to be shown without first viewing the videos to determine whether the danger of unfair prejudice substantially outweighed their probative value, the Court erred and his conviction must be reversed. We agree that the District Court abused its discretion, not only by failing to review the videos prior to admitting them but also by allowing all of those videos to be shown to the jury, because the highly inflammatory nature of two of them clearly and substantially outweighed their probative value pertaining to the crimes charged. Those errors were not harmless, and we will therefore vacate and remand for a new trial.

Worth the read

September 11, 2012 | The Law Office of Philip D. Cave

Estimating Gender Disparities in Federal Criminal Cases

Sonja B. Starr

University of Michigan Law School
August 29, 2012
University of Michigan Law and Economics Research Paper

Abstract:
This paper assesses gender disparities in federal criminal cases. It finds large gender gaps favoring women throughout the sentence length distribution (averaging over 60%), conditional on arrest offense, criminal history, and other pre-charge observables. Female arrestees are also significantly likelier to avoid charges and convictions entirely, and twice as likely to avoid incarceration if convicted. Prior studies have reported much smaller sentence gaps because they have ignored the role of charging, plea-bargaining, and sentencing fact-finding in producing sentences. Most studies control for endogenous severity measures that result from these earlier discretionary processes and use samples that have been winnowed by them. I avoid these problems by using a linked dataset tracing cases from arrest through sentencing. Using decomposition methods, I show that most sentence disparity arises from decisions at the earlier stages, and use the rich data to investigate causal theories for these gender gaps.

h/t Prof. Berman.

No Easy Day

September 4, 2012 | The Law Office of Philip D. Cave

And is it possible there may be no easy nights?

1. Is he a retiree, and thus potentially subject to recall for the purpose of prosecution under the UCMJ.

Here is a Mil. L. Rev. article on Article 2(a)(4) and (6), UCMJ (2102), and check out the following:

A neglected subject?

September 1, 2012 | The Law Office of Philip D. Cave

In all of the political and policy discourse about sexual assaults little if any attention is given to sexual assaults committed by women, usually on men.

Here is an interesting article about the “discussion” about prison sexual assault. Can the same be said for non prison sexual assault views.

Engendering Rape

Preservation

August 31, 2012 | The Law Office of Philip D. Cave

I was thinking this morning about issues that a trial defense counsel ought to be aware of and/or know about for appeals.

This evening I got a VACLE “tip,” entitled, Did You Know? What’s the most common reason arguments on appeal are not heard on the merits? The following was included.

Proffer excluded testimony and exhibits for the record: One of the least understood practices essential to preserving error concerns proffers. If testimony is excluded, the appellate court generally cannot address an appeal on that point unless the party offering the testimony proffers the testimony so that it is part of the record. Likewise, exhibits that are excluded need to be marked “excluded” and included in the record, and the offering party must demonstrate in the record not only an objection to the exclusion but the reasons supporting the objection.

Up periscope!

August 30, 2012 | The Law Office of Philip D. Cave

Several items of interest.

Army Times reports: The first female soldier to flee the U.S. military for Canada to avoid the war in Iraq has been ordered deported, a spokeswoman for the War Resisters Support Campaign said Thursday.

On the home grown terrorism front Air Force Times reports:

What should a registered sex offender do when running from a hurricane?

August 28, 2012 | The Law Office of Philip D. Cave

h/t Prof. Berman.

http://sentencing.typepad.com/sentencing_law_and_policy/2012/08/what-should-a-registered-sex-offender-do-when-running-from-a-hurricane.html

Ambiguous request for counsel

August 28, 2012 | The Law Office of Philip D. Cave

Result – statements suppressed, and will be in the 9th because of Sessoms v. Runnels, No. 08-17790, 2012 U.S. App. LEXIS 17206 (9th Cir. 2012) Wow. What about Davis v. United States?

Davis doesn’t apply because the ambiguous request came BEFORE the accused was advised of his Miranda rights. So, why isn’t there a similar situation for an accused who makes an ambiguous request prior to Article 31, UCMJ, warnings.

Nonetheless, a critical factual distinction between Sessoms’s statements and those evaluated by the Court in both Davis and Berghuis remains: Sessoms made his statements before he was informed of his rights under Miranda. The Miranda Court held that the coercive atmosphere of interrogation makes it essential for a suspect to be “given a full and effective warning of his rights at the outset of the interrogation process.” 384 U.S. at 445. As the Court stressed, when “the police [have] not advised the defendant of his constitutional privilege . . . at the outset of the interrogation,” the suspect’s “abdication of [that] constitutional privilege—the choice on his part to speak to the police—[is] not made knowingly or competently because of the failure to apprise him of his rights.” Id. at 465 (citing Escobedo v. Illinois, 378 U.S. 478 (1964)).

Federal Model Jury instruction on social media

August 26, 2012 | The Law Office of Philip D. Cave

Federalevidence.com has this piece on about juries and social media, and a discussion of the model jury instruction.

They also link to an interesting 22 November 2011 Federal Judicial Center report .

The use of social media by jurors during trials and deliberations is not a common occurrence. Of the 508 judges who responded to the survey, only 30 judges (6%) reported any detected instances of jurors using social media during trial and deliberation[.]