Worth the Read Category Archives — Page 8 of 20 — Court-Martial Trial Practice Blog Published by International Military Lawyer

In the Supremes

December 3, 2015 | The Law Office of Philip D. Cave

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

Not CSI, but is it even close

November 17, 2015 | The Law Office of Philip D. Cave

We all laugh at TV shows and movies which we think of as fantasy. The CSI shows, NCIS, JAG, among . We ..get a laugh out of them. But reality may make you cry.

Nathan J. Robinson, Forensic Pseudoscience: The Unheralded Crisis of Criminal Justice. Boston Review, November 16, 2015.

This past April, the FBI made an admission that was nothing short of catastrophic for the field of forensic science. In an unprecedented display of repentance, the Bureau announced that, for years, the hair analysis testimony it had used to investigate criminal suspects was severely and hopelessly flawed.

ALAS, POOR TRUTH, WE KNEW YOU

November 17, 2015 | The Law Office of Philip D. Cave

My title is the title of an excellent article in the Air Force Reporter by Thomas G. Becker.

Mr. Becker takes on the amount of damage done to military justice and the truth-seeking process because of the changes to Article 32 proceedings.

NCIS violates the Posse Comitatus Act–no problem

November 6, 2015 | The Law Office of Philip D. Cave

United States v. Dreyer. A decision from the Ninth.

On issues arising from the Posse Comitatus Act (PCA), the en banc court affirmed the district court’s denial of a suppression motion, and remanded to the three-judge panel for consideration of remaining issues, in a case in which the defendant was convicted of one count of distributing child pornography and one count of possessing child pornography.

A special agent of the Naval Criminal Investigative Service (NCIS) conducted an investigation into computers in Washington state sharing child pornography by utilizing a software query that encompassed the entire state but did not isolate or look for military service members. The investigation revealed that the defendant, a civilian, had shared child pornography files, and the NCIS passed that information along to the local police department.

WorthTheRead-complexities of good time credit

October 12, 2015 | The Law Office of Philip D. Cave

Here is another case where a military prisoner has sought habeas corpus relief, in the Kansas District Court (the Tenth Circuit).

Valois v. Commandant, USDB

The case provides a fascinating discussion of the maze and complexities of DoD and Service regulations the award of good time credit, work abatement, and such, applicable to clients confined at the USDB.

Bergdahl v. Burke update with latest CAAF filing

October 12, 2015 | The Law Office of Philip D. Cave

Bergdahl v. Burke.

More information here.

WorthTheRead–apology made

October 12, 2015 | The Law Office of Philip D. Cave

I’m a believer in Restorative Justice. In America The Vengeful this is an approach much derided and ignored. In my view that means the exacters of “justice” don’t really care much about the victim. Anyway, there are many facets to the concept one of them is repairing what has been done wrong. For the victim this may well include receiving a genuine apology. The problem in criminal cases is when to make the apology. I have developed several ways to do this without the apology becoming evidence. Here is an interesting article about the timing of the apology (and it’s consistent with part of my approach).

Michael C. Jones, Can I Say I’m Sorry? Examining the Potential of an Apology Privilege in Criminal Law. Comprehensive Law – Fall 2012 Phoenix School of Law.

WorthTheRead-Schlueter on Commanders and Sex

October 6, 2015 | The Law Office of Philip D. Cave

David A. Schlueter, American Military Justice: Responding To The Siren Songs For Reform. 73 A.F. LAW REV. 195 (2015).

In Greek mythology, a “siren” was a creature—half bird and half woman— that would lure sailors to destruction with their sweet and enticing songs. Today, the American military justice system is being subjected to sweet and enticing calls for reform—siren songs. At first hearing, the well-intentioned proposed reforms appeal to a sense of justice. On closer examination, however, those proposed reforms threaten the essence and functionality of an effective and efficientsystem of criminal justice that is applied in world-wide settings, in both peacetime and in war.

Proposals to change the American military justice system have generally come in waves, following major military actions, which tended to expose those elements or features of the system which had not worked well, or in the minds of the reformers, could be made better.

Oh please. . .

September 12, 2015 | The Law Office of Philip D. Cave

The Gazette of Colorado Springs has an article on the current USAFA sexual assault case. It’s worth the read because of its misinformation, or perhaps lack of understanding. So here goes with some comments.

1.People are upset because it’s odd the hearing was closed for quite a bit of time. Duh. Of course it’s closed:

But a series of contentious, closed-door hearings has delayed the case.

Those pesky OSI/NCIS/CID/agents are lying, or not

September 7, 2015 | The Law Office of Philip D. Cave

(W)e seem to be on an endless quest to unmask the deceiver. This is easier said than done. The research is surprising.

Even the professionals aren’t very good at catching people in a lie.

When we do catch a lie, it’s often not for the reasons you may expect.