Court-Martial Trial Practice Blog

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[.]

The new privilege for victim-advocates does not apply

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

The new Mil. R. Evid. may not apply to any offense committed prior to it’s effective date? Is there an argument that application to an offense prior to the effective date violates the ex-post facto clause. See Calder v. Bull, 100 U.S. 1 (1798).

Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Bite mark evidence and testimony-defense resource

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

Occasionally there is a case involving bite mark evidence and testimony. This type of testimony is subject to challenge under Houser. Here I am talking about a case where the bite mark testimony goes to prove the identity of the accused.

So, to that end the defense needs resources to challenge admissibility of the evidence under Houser and also to evaluate and challenge evidence if it is admitted by the military judge.

THE INNOCENCE PROJECT (IP) is a national litigation and public policy organization based in New York dedicated to exonerating wrongfully convicted individuals through DNA and reforming the criminal justice system to prevent future injustice. As the DNA exonerations have revealed, the misapplication of forensic science has been a leading cause of wrongful convictions. The newly created Strategic Litigation unit is aimed at, among other things, eliminating junk science from courtrooms nationwide, beginning with bite mark comparison evidence. To that end, IP seeks to partner with an attorney(s) on criminal cases involving bite mark comparison. Attorneys with cases meeting the following criteria should contact IP directly.