Most are now familiar with the NMCCA decision in United States v. Howell. In that case, compared to several others, the court found there was UCI affecting the trial and granted the appeal in Howell’s favor. Howell is not out of legal jeopardy, because the court decided:
A rehearing may be ordered.
And it is reported that Howell is still in pretrial confinement., while a decision is made on whether to conduct a retrial or administratively separate him with an OTH.
I posted at CAAFLog about a search conducted in the defense counsel offices at Camp Pendleton.
Here Marine Corps Times reports some of the fallout, including it looks like one of the photos we put up on CAAFLog.
In the wake of a controversial search of Camp Pendleton, California, defense attorneys’ offices by military investigators, the senior Marine prosecutor who planned the search has been ordered off a number of cases and reassigned to a new job.
I have commented before that an Appellant sometimes gets a grant on a Grostefon issue, and sometimes wins something.
Unfortunately for Cerion R. ALLEN, he got a Grosty grant, but the victory was Pyrrhic.
No. 14-0519/AR. U.S. v. Cerion R. ALLEN. CCA 20120742. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we agree with Appellant’s personally asserted contention that the facts established during the plea inquiry and in the stipulation of fact demonstrate only a single conspiracy. Appellant was convicted of one conspiracy to commit robbery (Specification 2 of Charge II) and one conspiracy to commit burglary (Specification 3 of Charge II), but the plea inquiry and stipulation of fact show that there was only one agreement between Appellant and his co-conspirators to break into and rob the alleged drug house. Therefore, Specification 3 of Charge II should be consolidated with Specification 2 of Charge II to become a single specification. See United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000); United States v. Reliford, 27 M.J. 176 (C.M.A. 1988) (summary disposition). Although the conspiracy offenses are consolidated, we are satisfied that Appellant suffered no prejudice as to his sentence. Accordingly, it is ordered that said petition is granted on the following personally asserted issue[.]
The ACCA has issued an unpublished opinion in United States v. Barnes.
We all of us have dealt with the client who wants to – and should – plead guilty to some offenses, but he tells you he was so drunk at the time he remembers nothing, or at least very little. Now what, can he be provident.
The basic answer is yes. We have the general principle:
Federal Evidence Review is one of many websites I review on a regular basis. The blog has, “noted how the lower courts continue to grapple with the application of the Confrontation Clause to expert testimony based on the lack of clarity from recent Supreme Court cases. See, e.g., Confrontation Clause: Continuing Uncertainty For Expert Testimony Following Williams v. Illinois.”
Based on recent Supreme Court cases involving expert testimony under the Confrontation Clause, the Soto case provides some useful guidance. First, reexamination or "second analysis" testimony should be permitted where the second examiner conducts an independent review of the evidence and testifies about his or her independent conclusions. Second, to avoid challenges of impermissible bolstering, the second examiner should minimize reference to the conclusions of the first examiner. Any testimony about testimonial statements of the non-testifying first examiner may be subject to challenge under the Confrontation Clause.
The author discusses United States v. Soto, (1st Cir. 2013). Justice Souter is a member of the panel, although he did not write the opinion.
Here is an interesting little piece.
The outbreak of violence by individuals who seek to harm other persons or institutions cannot be reliably predicted today, the Defense Science Board said in a new report to the Secretary of Defense. Instead, efforts to counter violence should focus on prevention and mitigation of the threat.
The DSB was created and tasked in response to MAJ Hasan and the Fort Hood shootings. But does the report have important learning points in regard to sexual assault prevention.
The CAAF held that there is no right of confrontation at sentencing. The other rules do apply, such as hearsay, unless you relax the rules (something I rarely if ever do). United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001); United States v. George, 52 M.J. 259 (C.A.A.F. 2000).
The question in the title of this post is prompted by a new student note by Amanda Harris, which is titled "Surpassing Sentencing: The Controversial Next Step in Confrontation Clause Jurisprudence" and is available here via the Florida Law Review. Here is the abstract:
After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation. One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and federal courts continue to hold that no right of confrontation during sentencing exists, many other courts have chosen to apply a right of confrontation in both capital and non-capital sentencing.
Adam A. Field, Beyond Michigan v. Bryant: A Practicable Approach to Testimonial Hearsay and Ongoing Emergencies, 2012 IL. L. Rev. 1265 (2012).
Now that the current slew of confrontation cases are decided it’s time to regroup.
Let’s start with my former evidence professor, Paul Gianelli (a former Army JA).
Confrontation, Experts, and Rule 703
Lyle Denniston at SCOTUSBlog has a preview of Perry v. New Hampshire.
At 10 a.m. next Wednesday, the Supreme Court will hear one hour of oral argument on a case seeking clarification of when trial courts must exclude the testimony of an eyewitness to a crime because the testimony was unreliable. In the case of Perry v. New Hampshire (10-8974), arguing for Barion Perry of Nashua, N.H., will be Richard Guerriero, a public defender in Concord, N.H. Representing the state will be its Attorney General, Michael A. Delaney of Concord, with 20 minutes of time. Supporting New Hampshire, for the federal government as an amicus, with ten minutes of time, will be Nicole A. Saharsky, an assistant to the U.S. Solicitor General.
United States v. Rhodes, 42 M.J. 287 (C.A.A.F. 1995), seems to be ‘the’ military case.
Court-Martial Trial Practice Blog