Court-Martial Trial Practice Blog

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.)

Wikipedia as a reliable source

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

Well, I use Wikipedia for research. But, I use it “in some limited situations . . . for getting a sense of a term’s common usage." Fire Insurance Exchange v. Oltman & Blackner, Case No. 201004262-CA, 2012 UT App 230 (Utah App. 2012)(discussing the uses and reliability of Wikipedia as a source of information).

See e.g., United States v. Jones, ARMY 20090401 (A. Ct. Crim. App. December 14, 2011), Appellant was accused of effectively “Equating MOS trainees to permanent party – grandmothers to toads” The court cites to Wikipedia for the proposition that the expression “WIKIPEDIA, http://en.wikipedia.org/wiki/Apples_and_oranges (a Serbian expression akin to the familiar "apples to oranges" idiom in English) (last visited Dec. 1, 2011); in United States v. Magalhaes, NMCCA 200602480 (N-M Ct. Crim. App. February 21, 2008), the court cites to Wikipedia for the definition of the Pythagorean Theorem; in United States v. Ober, ACCA again resorts to Wikipedia for discussion of Kazza one of the early “programs” used to exchange many things over the internet, but for our purposes CP (which was also done in State v. Ballard, 2012-NMCA-043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012)(citing Wikipedia to define "peer-to-peer file sharing").).

But the Fire Insurance Exchange court cites to these several cases and there is an interesting discussion of Wikipedia.

Stolen Valor

August 17, 2012 | The Law Office of Philip D. Cave

http://verdict.justia.com/2012/08/17/teaching-and-learning-about-united-states-v-alvarez-the-stolen-valor-act-casehttp://verdict.justia.com/2012/08/17/teaching-and-learning-about-united-states-v-alvarez-the-stolen-valor-act-case

Denedo, Miller, Padilla . . .

August 17, 2012 | The Law Office of Philip D. Cave

Deciding what to advise an accused about deportation or sex offender registration is easy (isn’t it). But,

Aguilar-Turcios v. Holder, might lead to a different conclusion.

Justia.com Opinion Summary: Petitioner, a native and citizen of Honduras and a lawful permanent resident alien of the United States, petitioned for review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal from an immigration judge’s order finding him removable as an alien convicted of an aggravated felony. At issue before the Ninth Circuit Court of Appeals was whether Petitioner’s conviction under Article 92 of the Uniform Code of Military Justice qualified as an "aggravated felony" under the modified categorical approach as explained in the Court’s recent en banc decision in United Sates v. Aguila-Montes de Oca. The Court granted the petition, concluding that Petitioner’s Article 92 conviction was not an aggravated felony and Petitioner was therefore not removable. Remanded with instructions to vacate the removal order against Petitioner.

Worth the read

August 15, 2012 | The Law Office of Philip D. Cave

1. None of the Supreme Court Justices Has Battle Experience, Andrew Cohen, The Atlantic.

This is the first of a two-part series on the Supreme Court and the military. Today’s article focuses on the military history of the men who later became justices. Part II will focus on the disconnect between the current Court and the American war effort.

2. Why Don’t the Justices Ever Visit Military Hospitals? Andrew Cohen, The Atlantic.