Court-Martial Trial Practice

A federal Judiciary committee has issued a new set of model jury instructions (pdf) that federal judges may use to deter jurors from using social media to research or communicate about cases.

The new instructions, which update and expand on a similar version issued in 2012, were sent to federal judges on Sept. 1.

The new model instructions caution jurors about the many ways social media can undermine a jury’s ability to deliver an impartial verdict. The instructions suggest that reminders about social media restrictions be given throughout the trial, instead of only at its beginning and end, as was recommended in the 2012 version.

In Ford v. Perry, the court set aside a conviction based on improper comments of the prosecutor during closing argument.

During closing arguments, Ford’s lawyer offered a classic criminal defense that contradictions of witnesses and doubt over the identity of the shooter meant that the presumption of innocence had not been satisfied.  The prosecutor then decided to dispense with the whole presumption:

“This idea of this presumption of innocence is over. Mr. Ford had a fair trial. We were here for three weeks where . . . he gets to cross-examine witnesses; also an opportunity to present evidence information through his lawyer. He had a fair trial. This system is not perfect, but he had a fair opportunity and a fair trial. He’s not presumed innocent anymore.”

Nathaniel Penn gives us a piece of  investigative journalism in his new article on Army 1st LT Clint Lorance. This is the sordid saga of a LT whose actions wreaked havoc on those within his platoon, whom a panel (jury) of Army Soldiers convicted of murder, and whom President Trump later pardoned after Fox News transformed Lorance into a weapon in the polarizing culture wars it has helped fuel.

The Joint Service Committee on Military Justice has submitted its subcommittee’s Prosecutorial Authority Study report in response to § 540F of the National Defense Authorization Act for Fiscal Year 2020. The report, which cost the taxpayers $109,000 (that’s $1185 per page, if you don’t count the appendices), can be found here. There’s also a one-page summary here.

Just Security discusses minimization of civilian casualties beyond that required by military necessity.

Against this backdrop, an important symposium series, “Civilian Casualties: The Law of Prevention and Response,” is kicking off on Wednesday (September 30) at noon EDT. The series is intended to promote deeper discussion and greater understanding of the broad range of considerations that underlie these critical issues. Conceived originally (before the pandemic) as a one-day event in Washington — part of the Signature Topic Initiative on Atrocity Prevention, sponsored by the American Society of International Law (ASIL) — the revamped online symposium format will facilitate a far wider range of participants as the Symposium takes a hard, honest look at these issues.

There will be six expert panels spread over a six-week period, each discussing a distinct area of law and policy on civilian casualties, each drawing from leaders and emerging voices from the military and government, civil society and humanitarian organizations, and academia. The U.S. Army Judge Advocate General, Lt. Gen. Charles Pede, will provide introductory keynote remarks on Wednesday. That will set the stage for the first week’s panel: “Compliance Professionals, The Law, and Ethics: Advising Leaders and Influencing Operations from the Front Lines.”

We do that–right. Make an issue of the MCIO failures to investigate, their tunnel vision, their confirmation bias, and overall bias.

Here’s an Article that might help.

Lisa Steele, Investigating and Presenting an Investigative Omission Defense. 57 CRIM. L. BULL. (2021) (Forthcoming).

NMCCA published new rules effective 1 July 2020. Not this change. I’m agnostic whether this change will add confusion or not for the litigants.

Rule 17.5. Table of Pseudonyms. 

(a) With the exception of merits briefs, all initial briefs in support of an appeal or petition shall include a separate table of pseudonyms filed with the Court under seal. See Appendix K. Notwithstanding the fact that the table is filed under seal, the party filing the table will serve an unredacted copy of the table upon all other parties to the appellate litigation. Absent Order of the Court, all parties and the Court shall use the aassigned pseudonymsin all filings, orders, and opinions.