Court-Martial Trial Practice Blog

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.

IAC pretrial

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

I have already posted about IAC prior to trial in connection with GP’s.

Here’s a case, Ostrander v. Green, 46 F.3d 347 (4th Cir. 1995) – from the Fourth no less — that is very interesting because it makes clear there is a different standard of review that Strickland.

In its first opinion, the district court applied the wrong legal standard to Ostrander’s ineffective assistance claim. It used the Strickland v. Washington[, 466 U.S. 668 (1984),] test instead of the more specific Hill v. Lockhart[, 474 U.S. 52 (1985),] standard for guilty pleas induced by ineffective assistance. There is a significant difference between the tests. Under Strickland, the defendant shows prejudice if, but for counsel’s poor performance, there is a reasonable probability that the outcome of the entire proceeding would have been different. Under Hill, the defendant must show merely that there is a reasonable probability that he would not have pled guilty and would have insisted on going to trial.

Worth the read

August 25, 2012 | The Law Office of Philip D. Cave

Adam A. Field, Beyond Michigan v. Bryant: A Practicable Approach to Testimonial Hearsay and Ongoing Emergencies, 2012 IL. L. Rev. 1265 (2012).

The Taliban Don’t Wave

August 21, 2012 | The Law Office of Philip D. Cave

The Ottawa Citizen reports on a new publication. The title of the new piece is, Former Office ‘amazed’ he stayed sane during court martial.

Former infantry officer Robert Semrau, who was dismissed from the Canadian Forces for shooting a severely wounded Taliban insurgent on an Afghan battlefield, has ended a two-year silence with the publication of a new book.

The book, The Taliban Don’t Wave, attempts to place the controversial events of Oct. 19, 2008, into a broader context. Slated to be published later this month, the 312-page book details the stress, horrors and heroics of Semrau’s four-month tour of duty in Afghanistan, which ended with his arrest on a charge of second-degree murder.

IAC

August 21, 2012 | The Law Office of Philip D. Cave

Andrea D. Lyon, The Promise of Effective Assistance of Counsel: Good Enough Isn’t Good Enough, The Champion, NACDL, June 2012.

Discovery

August 21, 2012 | The Law Office of Philip D. Cave

Proposed 18 USC § 3014, Duty to Disclose Favorable Information and Commentary

NACDL Discovery Legislation and Commentary Many recent cases have exposed the fact that federal prosecutors, whether through negligence or by design, all too often fail to abide by their constitutional duty to disclose information favorable to the defendant. To help ensure fairness in federal criminal proceedings, the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL) has endorsed model legislation drafted by NACDL’s Discovery Reform Task Force that would require the government to disclose all information favorable to the accused in relation to any issue to be determined in a federal criminal case.

Read the combined legislation and commentary. (PDF)

Favorite topic-investigator bias

August 21, 2012 | The Law Office of Philip D. Cave

Except in a slightly different context, but still a similar point.

Errin Morris, Cognitive Biasl and Evaluation of Forensic Evidence, The Champion, NACDL, May 2012.

Remember, USACIL and all the others get a full brief sheet on why the evidence should be tested and lots of facts. The subsequent testing is not done in the blind.

Former testimony of LE at Art. 32?

August 20, 2012 | The Law Office of Philip D. Cave

Here is an interesting post from one of my favorite sites – federalevidence.com

Testimony by arresting officer from defendant’s suppression hearing (regarding what the officer saw as the only witness to the defendant’s confession to the charged crime) should not have been admitted as FRE 804(b)(1) former testimony in defendant’s subsequent drug distribution conspiracy trial; the defense did not have a similar motive in questioning the officer during the suppression hearing (e.g., as to show the alleged confession was not voluntary and therefore inadmissible), as the defendant would have during the trial on the merits (in examining the officer about the substance of the defendant’s alleged confessional statements), in United States v. Duenas, __ F.3d __ (9th Cir. Aug. 16, 2012) (Nos. 09-10492, 09-10496).

This case focuses on the issue of counsel’s motive in confrontation at a prior hearing. I’m not so sure that this case helps exclude prior testimony from an Article 32, UCMJ, investigation, but . . .

Prosecutorial discretion or power

August 20, 2012 | The Law Office of Philip D. Cave

h/t to Prof. Berman TG.

The title of this post is the headline of this new New York Times segment of its series "Room for Debate." The NY Timesbrought together five leading lights to comment on this question (all of whom appear to supply variations on the answer "Yes"). Here is how the segment sets up the debate, followed by links to the must-read pieces that provide five different answers to the question:

A U.S. district judge in Denver recently rejected a plea bargain in a child pornography case because the defendant had agreed to waive his right to appeal. The judge said such a deal would undermine the purpose of appellate courts. (He later accepted a plea bargain without that stipulation.)