Uncategorized Category Archives — Page 45 of 112 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Grosty

June 12, 2014 | The Law Office of Philip D. Cave

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[.]

I don’t remember

January 12, 2014 | The Law Office of Philip D. Cave

The ACCA has issued an unpublished opinion in United States v. Barnes.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:

Crawford-not a surrogate

July 1, 2013 | The Law Office of Philip D. Cave

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, (1^st Cir. 2013). Justice Souter is a member of the panel, although he did not write the opinion.

Dual or multi-purpose

October 10, 2012 | The Law Office of Philip D. Cave

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.

Crawford at sentencing

September 21, 2012 | The Law Office of Philip D. Cave

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.

Worth the read

August 25, 2012 | The Law Office of Philip D. Cave

Adam A. Field, Beyond Michigan v. Bryant: A Practicable Approach to Testimonial Hearsay and Ongoing Emergencies, 2012 IL. L. Rev. 1265 (2012).

Confronting experts

July 8, 2012 | The Law Office of Philip D. Cave

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

In the Supremes

October 30, 2011 | The Law Office of Philip D. Cave

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.

Police created exigent circumstances

January 14, 2011 | The Law Office of Philip D. Cave

I don’t know that we’ve had this issue come up in military cases, but there’s a first time for everything. Plus this case highlights potentially confusing “tests” that arise from different courts.

During oral argument in Kentucky v. King on Wednesday, the Court struggled to find the proper test for determining when police are prohibited from justifying a warrantless search with exigent circumstances that they create. Because neither side supported the Kentucky Supreme Court’s two-prong test, a straightforward affirmance seems very unlikely; instead, the Court focused on whether the state’s proposed “lawfulness” test or another of the five tests currently being used by lower courts is best.

H/T to SCOTUSBlog.

CAAF publishes Hutchins

January 11, 2011 | The Law Office of Philip D. Cave

United States v. Hutchins.

Chief Judge Effron writes for a unanimous court.

The Judge Advocate General of the Navy certified the case to this Court for review of the following issues:
I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING, INTER ALIA, THAT THE MILITARY JUDGE SEVERED THE ATTORNEY-CLIENT RELATIONSHIP WITH CAPTAIN BASS?
II. WHETHER UNDER R.C.M. 505(d)(2)(B), THE NAVYMARINE CORPS COURT INCORRECTLY FOUND NO “GOOD CAUSE” ON THE RECORD FOR THE REPLACEMENT OF APPELLANT’S SECOND DETAILED DEFENSE COUNSEL WITH ANOTHER COUNSEL?
III. WHETHER THE LOWER COURT APPLIED THE WRONG STANDARD AND ERRONEOUSLY PRESUMED, WITHOUT ASSESSING, PREJUDICE AND SET ASIDE THE FINDINGS AND SENTENCE, WHERE APPELL[EE]’S STATUTORY RIGHTS, AND CONSTITUTIONAL RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL, WERE SATISFIED THROUGH TRIAL?