Court-Martial Trial Practice BlogYOUR MILITARY DEFENSE COUNSEL SHOULD CHALLENGE THE APPLICATION OF THE MILITARY RULE OF EVIDENCE 311.
THE RULE VIOLATES THE U.S. CONSTITUTION.
WE ARE CHALLENGING THAT AT THE U. S. SUPREME COURT NOW.
Articles Posted in Supreme Court
Unanimous verdicts
Military lawyers know that since the Supreme Court decided Ramos v. Louisiana, the U. S. military is the only federal jurisdiction that does not require unanimous findings of guilt.
Currently, a military jury (called a Panel of Members) must have eight members in a general court-martial (12 if it’s a death penalty case) and four in a special court-martial. Article 29. Three-fourths of the members must vote for a finding of guilty. Article 52.
That is the current law in the military, but it is being challenged. The Court of Appeals for the Armed Forces has several cases on the issue of unanimous verdicts, which will be decided this term. If the court decides in favor of unanimous verdicts, then the Government will likely appeal to the U. S. Supreme Court (or vice-versa).
Noteworthy Supreme Court petition
Friend and colleague draws attention to McGee v. McFadden, a petition for a writ of certiorari to the U. S. Supreme Court.
Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.
More information, including the petition at SCOTUSBlog here.
Bluebooking, the bane of a lawyers life and a cleaner life
(cleaned up)
Yes, back in 1976 I got my Bluebook and throughout the three years of law school, it was a regular reference. Ah, but it continues to be a daily tool–for motions, briefs, and such. I fear one day I’ll Bluebook a conversation with a relative or friend in everyday conversation.
One of the common questions is how best to quote, be it an appellate decision or a law journal. Jack Metzler proposes a solution, In Cleaning Up Quotations, to be published in 18 J. APP. PRAC. & PROCESS.
Supreme Court gossip
SCOTUSBlog has an interesting post about the court’s relist practice. Some of us discussed the relist option when the court was considering the petition in United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) cert. denied.
When last we wrote about the statistics of relists a little over a year ago, it was to report on what was then a new trend: the court’s practice of routinely relisting petitions that are under serious consideration for review at second or subsequent conferences prior to entering orders granting or denying certiorari. The practice is by now an accepted feature of the certiorari process, and at least one relist is generally viewed as a necessary step on the way to a grant of further review. Here, we offer an update on the statistics of relists. Focusing on October Term 2015, we highlight some emerging trends in what appears to be an evolving practice.
Regrettably, on 3 October 2016 the court declined to take Captain Sullivan’s petition.
Interesting data?
In preparing the petition for Schloff, we looked to the amount of cases coming through the system related to prosecutions under UCMJ art. 120.
The Army is “reporting” about 60% of cases for last year were sexual assault/120 cases. We have not been able to gain similar “information” from the Air Force or Department of the Navy. Anyone know?
In the Supremes
On 30 November 2015, the Supreme Court heard oral argument in Musacchio v. United States, a case of potential interest to military justice practitioners.
There are two questions presented.
(1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and
A question of judge and jury impartiality–conflict
The petition for a writ of certiorari has been filed in Sullivan v. United States, CGCMG 0285 (C.G. Ct. Crim. App. 25 September 2014)(unpub.), 74 M.J. 448 (C.A.A.F. 2014).
Yes they can–yes the CCA can order a sentence-only rehearing
The problem is that the CCA’s don’t do that enough. But at least they have the power.
The underlying issue is whether Article 66(d), UCMJ, authorizes the CCAs to order sentence-only rehearings. The government argues that the CCAs do not have that authority and asks that we overrule this court’s decision in United States v. Miller, 370 C.M.A. 296, 27 C.M.R. 10 (1956), in which we specifically recognized the authority of the CCAs to order sentence-only rehearings. The government asserts that Miller was wrongly decided in light of Jackson v. Taylor, 353 U.S. 569 (1957).
Two years of federal evidence
Once again one of my two favorite evidence blogs (federal evidence review) has published the annual “review” for 2013 and for 2014.
Key Evidence Issues During 2013
1. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Kansas v. Cheever: Allowing The Government To “Follow” Where The Defense Leads On Defense Expert Mental State Evidence