Members (Jury) Issues Category Archives — Page 3 of 4 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Members (Jury) leaders.

October 11, 2009 | The Law Office of Philip D. Cave

Barbara Rich Bushell, Identifying Leaders, 21(5) The Jury Expert, Sept. 2009.

When I initially read this piece I did not see any relevance to a military Members panel (the jury). The military “foreperson” is preselected, and will be automatically selected after challenges – it’s the senior Member by rank and date of rank. However, after a few more readings there do seem to be some potential ideas from the piece. So lets moot a little.

1. The senior member is not a leader in the traditional military sense and will defer to others in certain situations – maybe she’s the medical type. You need to know who the alternate leader is, the one who is likely to take over in the deliberation room. And having been there done that with a (non prior enlisted) O-3 senior member and a sergeant major on the panel, well . . . . . you get the picture.

Smith and instructions.

October 8, 2009 | The Law Office of Philip D. Cave

Here is a CNN piece on United States v. Smith.

Dog handler appeals conviction in Abu Ghraib case.

He’s already served the time, but lawyers Thursday argued to clear his name as onetime U.S. Army Sgt. Michael Smith appeals a conviction for the torture of detainees once held at the Abu Ghraib prison in Iraq.

Hamdaniyah

August 14, 2009 | The Law Office of Philip D. Cave

NMCCA has an unpublished opinion on line in United States v. Thomas. The case is interesting partly because it is an recitation of some facts vice news reported “facts.”

I find footnote 3 to the decision of some interest:

The Second Circuit has found that removal of any person who has previously served on a jury that ultimately acquitted an accused is an appropriate reason, regardless of race, for future challenge. United States v. Douglas, 525 F.3d 225 (2nd Cir. 2008).

Prof’s comment on U.S. v. Matthews

August 12, 2009 | The Law Office of Philip D. Cave

Professor Colin Miller has a comment today on his blog about United States v. Matthews, 68 M.J. 29 (C.A.A.F 2009) He illustrates that Mil. R. Evid. 606 mirrors the federal rule but has the additional exception for “command influence” in the Members deliberation room.

Chain Of Command: Military Case Reveals Interesting Exception To Military Rule Of Evidence 606(b).

News of the weird

July 10, 2009 | The Law Office of Philip D. Cave

Lawyer seeks to prevent opponent from wearing worn shoes: The economy may be in the dumps, but lawyers shouldn’t skimp on their pumps, according to this story in the Palm Beach Post. (H/T The Maryland Injury Lawyer Blog). Florida defense lawyer Michael Robb found himself the target of a motion asking the court to prevent him from wearing shoes with holes in the soles, which were allegedly part of his trial strategy. Robb’s retort? "I’ve been practicing law for 21 years, and Mr. Bone thinks he’s finally cracked the key to my success? Gotta be the shoes. Like Michael Jordan.

Law.com/Legalblogwatch.

Members Instructions on new “media.”

June 22, 2009 | The Law Office of Philip D. Cave

Jury instructions to include rules on use of new media

Recent incidents of jurors using new media during cases in civilian courtrooms in the States have led a military judge to rework instructions given to panelists in military courts-martial.

Army Col. Ted Dixon, a military judge who edits the military judges’ benchbook, said he’s not aware of any cases of a servicemember posting information on an ongoing court-martial while serving as a juror, but he’s aware of such events in the civilian world.

As a result of cases like these, Dixon said he’s been working on specific language addressing networking phenomena such as Twitter and Facebook that judges would use when instructing troops who sit on court-martial panels. Fellow judges have been providing him feedback and there seems to be a general consensus, he said.

Technology in the court-room

April 7, 2009 | The Law Office of Philip D. Cave

Not the lawyers — the jurors.

I've posted several articles, and the web is rife with articles, posts, and case decisions about how jurors are using technology in the jury room: twittering, contacting the media, and now this interesting piece by Prof Colin Miller. An Analog Rule in a Digital World?: Court of Appeals of Indiana Precludes Jury Impeachment Based Upon Text Message Found in Defendant's Cell Phone, 7 April 2009.

The issue: What should be done when a juror comes forward after trial

Juror misconduct.

April 2, 2009 | The Law Office of Philip D. Cave

There has been something of a stir recently about jurors texting and twittering while court is in session. Here another interesting tale of the kind of shenanigans civilian jurors get up to.

We first consider Basham's argument that the district court should have granted his motion for a new trial after learning that the jury foreperson contacted several news media outlets during the penalty phase of the trial.

United States v. Basham, No._________, 2009 U.S. App. LEXIS 6595, at *24 (4th Cir. Mar. 30, 2009).

Peremptory challenges

March 31, 2009 | The Law Office of Philip D. Cave

The Supreme Court has decided Rivera v. Illinois. Justice Ginsburg wrote for a unanimous court.

This case concerns the consequences of a state trial court’s erroneous denial of a defendant’s peremptory challenge to the seating of a juror in a criminal case. If all seated jurors are qualified and unbiased, does the Due Process Clause of the Fourteenth Amendment nonetheless require automatic reversal of the defendant’s conviction?

The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless and therefore did not warrant reversal of Rivera’s conviction. We affirm the judgment of the Illinois Supreme Court.

Post-trial R.C.M. 917 motions

March 29, 2009 | The Law Office of Philip D. Cave

A change to Fed. R. Crim. Pro. recently adopted reminds me of a motion I file from time to time after the member's have found my client guilty, or at the time the military judge asks if there is anything else before adjourning the court — that's a Griffith motion. But first here is the change to the federal rule (which if you actually believe in Article 36, UCMJ,[n.1] should be adopted by the military — ha ha).

Rule 29. Motion for a Judgment of Acquittal

(c) After Jury Verdict or Discharge.

(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.

We are all used to losing motions for a finding of not guilty under R.C.M. 917. But don't give up. The standard of some evidence is so minimal, and credibility of the evidence is not a factor on a FNG motion. In United States v. Griffith, the court discussed the authority of the military judge to conduct a post-trial session of court prior to authentication of the record.