Articles Tagged with caaf

To paraphrase CMTG, Military (Federal) Rule of Evidence 801(d)(1) provides that

A statement is not hearsay if:

1.  The declarant testifies and is subject to cross-examination about a prior statement.

2.  The declarant testified under oath at a prior “hearing” or “or proceeding.”

For all of the criticisms of military justice and the UCMJ, you don’t have this at court-martial as tipped by Sentencing Law & Policy blog.

Cargill, a federal public defender, was perturbed by a rarely discussed U.S. court rule that critics say conflicts with the presumption of judicial openness.  In the Western District of Virginia, as in many other U.S. court districts, a probation officer makes a secret sentencing recommendation to the judge.  Cargill accidentally saw the probation officer’s recommendation for his client.  The report was "misleading and inaccurate," Cargill wrote in a protest letter.  (Emphasis added.)

Here is a link to the full article in the Roanoke (VA) Times.

United States v. Stanley.

The appellant raised eight errors through counsel and an additional six in accordance with United States v. Grostefon.

One assignment of error warrants discussion, but no relief.   Specifically, appellant alleges that the military judge erred by failing to properly instruct the panel regarding appellant’s right during mutual combat to exercise self-defense when the force used against him escalated.  Today we find that any error by the military judge was harmless beyond a reasonable doubt and affirm the findings and sentence.

Here’s a reminder about authenticating emails based on a posting from Prof. Colin Miller at EvidenceProfBlog.  To paraphrase Prof. Miller:

And, like its federal counterpart, [Mil. R. Evid.] 901(b)(4) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

Humor in military lawyering is good.  Humor is good.  Standby for a comment from DMLHS tonight.

In thinking about why the case would be delayed to 3 November 2010 there were all kinds of ideas floating around, some ideas being of a conspiratorial nature.  I had missed the piece noted by Reality Check (thanks!).  Anyway, I thought the first place to go would be be docket – but first a digression on the piece of reporting Reality Check caught.

The military judge did delay the start of the trial for a month to give the defense more time to ask the court of appeals for help.  (WUSA9 — http://goo.gl/Am1Q)

The CAAF Daily Journal for 14 September 2010 notes the filing of a petition for review by John M. Diamond.

Here is a FayObserver.com piece which documents some of the history of this case, including Michelle Theer’s abortive efforts to get a new trial.

According to court documents, witnesses for the prosecution repeatedly testified that Theer did not cooperate with the investigation and a prosecutor told the jury in closing arguments that Theer invoked her right to a lawyer when a co-defendant was arrested.

In two days CAAF has granted two urinalysis cases citing to Melendez-Diaz.  Note Blazier is still undecided.  In the Air Force case the defense did not object, in the Navy case the defense did object.

No. 10-0668/AF. U.S. v. Jerrod D. NUTT. CCA S31600. Review granted on the following issues:

WHETHER, UNDER MELENDEZ-DIAZ v. MASACHUSETTS, 129 S.CT. 2527 (2009), THE ADMISSION OF THE DRUG TESTING REPORT VIOLATES APPELLANT’S SIXTH AMENDMENT RIGHTS UNDER THE CONFRONTATION CLAUSE.

It appears that Denedo’s case is over.  On 8 September 2010, the Court of Appeals for the Armed Forces, with C.J. Effron and J. Baker dissenting, denied the filing of a writ appeal petition out of time.  The majority writes:

In support of the motion for leave to file writ-appeal petition out of time, Denedo’s counsel explained that he “erroneously believed that this case was governed by Rule 19(a)(1)(B),” which provides sixty days from the date of the decision at the CCA for filing a petition for review with this court.

Appellate defense counsel requests this court suspend Rule 19(e) pursuant to our authority under C.A.A.F. Rule 33, which states “[f]or good cause shown, the Court may suspend any of these rules in a particular case, on application of a party or on its own motion, and may order proceedings in accordance with its direction.” In our view, neither the fact of the previous Supreme Court review of Denedo’s case, nor the Padilla case are relevant to our analysis as to whether there was good cause for a late filing.  Counsel’s claim that he erroneously believed that this court imposed a sixty day deadline for the appeal of writ-appeal petitions does not provide us with the requisite good cause for suspending the deadline for filing a writ-appeal.

Here are some interesting tidbits from the CAAF orientation session for new attorneys courtesy of NIMJ.blog.

As for the rules changes, a big (and quite welcome, in my opinion) change is the new system in which nearly all CAAF pleadings are eligible for electronic filing. Be sure to redact privacy/sensitive information from such filings, as final briefs will be placed on CAAF’s webpage, starting this term.

Other changes make the already small needle’s eye to SCOTUS more microscopic for military appeals. While CAAF judges previously granted review of all appeals in which the appellant was serving 30 years or more in confinement, that is no longer the policy. Furthermore, for cases that come back to CAAF after a remand to the CCAs, CAAF will no longer automatically grant review of the case.

The Coast Guard has certified the following issues to CAAF.

No. 10-6010/CG.  U. S., Appellant v. ANDREW L. DALY, Appellee.  CCA 001-62-10. Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED IN APPLYIING THE STANDARD OF FAIR NOTICE, AS OPPOSED TO MISTAKE OF LAW, IN AFFIRMING THE MILITARY JUDGE’S FINDING THAT, UNDER COAST GUARD REGULATIONS, THE ACCUSED WOULD NOT HAVE KNOWN HIS CONDUCT WAS CRIMINAL AND THEREFORE HE COULD NOT BE PUNISHED UNDE ARTICLE 134, UCMJ.

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