Uncategorized Category Archives — Page 15 of 111 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Prisoner rights

August 12, 2020 | The Law Office of Philip D. Cave

Prison inmates retain a Fourth Amendment reasonableness right against abusive strip and body cavity searches enough to state a claim here. Qualified immunity is reserved for later. Henry v. Hulett, 2020 U.S. App. LEXIS 25390 (7th Cir. Aug. 11, 2020) (Easterbrook dissents that this right has to be found in the Eighth Amendment, not the Fourth):

Importantly, the Fourth and Eighth Amendments have different roles to play with respect to bodily searches and protect different categories of constitutional rights. The Eighth Amendment safeguards prisoners against the use of searches that correctional officers subjectively intend as a form of punishment. See Whitley, 475 U.S. at 319-20. Because reasonableness is an objective test, a defendant’s subjective state of mind is irrelevant to a court’s Fourth Amendment analysis. See Graham, 490 U.S. at 398 (“[T]he terms ‘cruel’ and ‘punishments’ clearly suggest some inquiry into subjective state of mind, whereas the term ‘unreasonable’ does not.”). The Fourth Amendment thus protects prisoners from searches that may be related to or serve some institutional objective, but where guards nevertheless perform the searches in an unreasonable manner, in an unreasonable place, or for an unreasonable purpose. See Bell, 441 U.S. at 559. This last consideration is particularly salient in the case before us: certainly, a court need not give as much deference to a prison administrator’s assessment of the necessity of a training exercise as it does to measures taken in response to the actual presence of weapons, contraband, or other immediate security concerns.

Brought to us by John Wesley Hallm, fourthamendment.com.

A lapse in time

August 6, 2020 | The Law Office of Philip D. Cave

Prof. Colin Miller brings us this note.

Similar to its federal counterpart, Idaho Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Old client

July 13, 2020 | The Law Office of Philip D. Cave

What happens after trial.

Here is another case of mine that found itself in federal court–United States v. Mingo. When the Feds tell you to register and follow the rules they mean it.

In January 2005, Mingo enlisted in the United States Army. See Sealed Complaint at 2, United States v. Mingo, No. 16 Cr. 597 (S.D.N.Y. Aug. 25, 2016) (the “Complaint”). The following year, he was convicted by court martial in the Military District of Washington of, inter alia, one count of rape of another member of his platoon in violation of Article 120 of the Uniform Code of Military Justice. Order of Nov. 30 at 1. He was sentenced principally to 30 months’ confinement and was discharged from military service in September 2008. See id.

And again

July 10, 2020 | The Law Office of Philip D. Cave

NMCCA has an unpublished opinion in United States v. Allen.

“We have written often to urge convening authorities and their staff judge advocates [SJAs] to pay scrupulous attention to detail throughout the post trial process. This case compels us to reiterate that urging yet again.” [1] Unfortunately, this is not a new problem in the military justice system. Citing 35 cases with erroneous Staff Judge Advocate Recommendations [SJARs] in a 15-month period, our sister court stated in United States v. Lindsey, almost 20 years ago:

This case presents the court with yet another incident in which an SJA has failed to provide complete and accurate information to the convening authority, as required by RCM 1106. The regularity of these post-trial processing errors is alarming and occurs in many jurisdictions. Most SJAR errors are the direct result of sloppiness and a lack of attention to detail. . . . Likewise, diligent trial defense counsel should identify and correct such errors whenever possible. These errors reflect poorly on our military justice system and on those individuals who implement that system. They should not occur!

After the court is over

June 7, 2020 | The Law Office of Philip D. Cave

What happened after—trial, CCA review, and in the case below at CAAF. From time to time I find it interesting to follow habeas cases involving a military petitioner. So, here is Santucci v. Commandant, No. 19-3116-JWL (D.C. Kan. May 26, 2020).

The ACCA decision.

The CAAF decision without opinion, is at 2017 CAAF LEXIS 522 (C.A.A.F. May 4, 2017).

Double jeopardy at CAAF

May 23, 2020 | The Law Office of Philip D. Cave

Colonel Rice was arrested for possession and distribution of CP. He was convicted in federal court and at court-martial. That is why we have a CAAF decision in United States v. Rice, __ M.J. ___ (C.A.A.F. May 21, 2020).

I think part of the takeaway here is that the Government can’t charge under Clause (1) or (2) of Article 134 where, if charged under Clause (3) would raise a double jeopardy dismissal. There’s more complexity to the case than that, but . . .

All agree, and we cannot ignore, that double jeopardy would prohibit the successive prosecution of the military charges if the Government had charged these offenses under clause 3 of Article 134, UCMJ, alleging a violation of 18 U.S.C. § 2252A.

Very significant case for post-trial w/subjurisdictional sentence

May 22, 2020 | The Law Office of Philip D. Cave

You all know that a client gets an automatic appeal to the Court of Criminal Appeals when the sentence is for more than one year and/or a punitive discharge.

You all know that a case with a subjurisdictional sentence gets a legal review and can be petitioned to TJAG under Art. 69(b). Also, you should know that a brief can be submitted for the Art. 69(a) review after a GCM (or as some of us do [because of timing] a request for reconsideration).

TJAG acts on legal error only. TJAG does not do a factual sufficiency review.

Corroboration is important

May 7, 2020 | The Law Office of Philip D. Cave

John E. Reid & Associates agree that more is needed than a simple “I did it.”

The reported interrogations of some of these suspects involved physical coercion, duress and outright torture. While the Supreme Court has consistently prohibited such interrogation practices, evidently the trial courts rejected the defendant’s claim that their confession was false. Traditionally, courts have afforded greater credibility to an investigator’s testimony than that of a defendant anxious to escape punishment. However, because future defense claims of improper interrogation practices may be given more credence, investigators and prosecutors should anticipate greater scrutiny by the courts in admitting confession evidence. The once accepted axiom that no innocent person would confess to a crime has proven to be false. Because of this, the prosecution must demonstrate that a confession is, in fact, trustworthy. The most convincing evidence to demonstrate the truthfulness of a confession is corroboration.

http://www.reid.com/educational_info/r_tips.html?serial=3258095019989437&print=%5Bprint%5D