Court-Martial Trial Practice Blog

Padilla in practice

September 14, 2010 | The Law Office of Philip D. Cave

Here is a training video and handouts from NACDL. This may be helpful with your junior enlisted court-martial clients who are foreign nationals.

In Padilla v. Kentucky, the Supreme Court held that defense lawyers must affirmatively and correctly advise their clients about the immigration consequences of entering a plea and failure to do so constitutes ineffective assistance of counsel. NACDL, in collaboration with the Defending Immigrants Partnership, will present a free live online training to discuss defense counsel’s duty under Padilla and related issues. Expert faculty analyze the Padilla decision, outline the steps defense counsel must take to provide effective assistance of counsel to their non-citizen clients, and provide essential instruction[.]

LTC Lakin sitrep

September 14, 2010 | The Law Office of Philip D. Cave

This is the 12th day that APF (safeguardourconstitution), LTC Lakin’s support site, has failed to post the military judge’s findings and conclusions, and advertises as “Breaking News,” “Judge to Rules (sic) . . ..”

The Post & Email reports today, submitted by Maj. Gen. Vallely:

The current Lakin defense strategy is limited to an ongoing search for a missing birth certificate that is of no real consequence, and they have been denied discovery access to any of Obama records, as well as anyone who has had access to those records. There is no defense for Lakin on this basis. . . .

Urinalysis cases

September 14, 2010 | The Law Office of Philip D. Cave

In two days CAAF has granted two urinalysis cases citing to Melendez-Diaz. Note Blazier is still undecided. In the Air Force case the defense did not object, in the Navy case the defense did object.

No. 10-0668/AF. U.S. v. Jerrod D. NUTT. CCA S31600. Review granted on the following issues:

WHETHER, UNDER MELENDEZ-DIAZ v. MASACHUSETTS, 129 S.CT. 2527 (2009), THE ADMISSION OF THE DRUG TESTING REPORT VIOLATES APPELLANT’S SIXTH AMENDMENT RIGHTS UNDER THE CONFRONTATION CLAUSE.

False confessions

September 14, 2010 | The Law Office of Philip D. Cave

New York Times has this good short piece about false confessions.

New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.

An article by Professor Garrett draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation.

Up periscope

September 14, 2010 | The Law Office of Philip D. Cave

This is the 12th day that APF, LTC Lakin’s support site, has failed to post the military judge’s findings and conclusions, and advertises as “Breaking News,” “Judge to Rules (sic) . . ..”

SFExaminer.com reports:

A Fort Stewart soldier charged with killing two members of his Army unit in 2008 is due back in court for a hearing on whether the military should pay for his defense team to travel to Iraq. . . . to interview Iraqi witnesses and investigated the crime scene.

Wuterich sitrep

September 13, 2010 | The Law Office of Philip D. Cave

The Atlanta Journal-Constitution reports:

A major Iraqi war crimes case that has dragged on for five years hit another snag Monday when a military judge excused one of the attorneys for a Marine sergeant whose squad was charged with killing 24 Iraqis. The move by military judge Lt. Col. David M. Jones came only weeks before the trial is set to begin on Nov. 2. Jones granted the request by the civilian attorney, retired Marine Lt. Col. Colby Vokey, who asked to be withdrawn because of an undisclosed ethical conflict. . . .

Wuterich’s attorneys have filed a motion that seeks to have the case dismissed, arguing the defense has been compromised by the withdrawal of Vokey, the only defense attorney to go to Iraq to see the scene of the 2005 killings in the Iraqi village of Haditha.

Shipboard privacy a la computers

September 13, 2010 | The Law Office of Philip D. Cave

Thanks the CAAFLog here is a link to the new Naval Law Review and an article about .

I had just such a case last week.

Here is a link to the JER provisions that are applicable.

Something to read

September 13, 2010 | The Law Office of Philip D. Cave

Swinging a Sledge: The Right to Effective Assistance of Counsel, the Law of Deportations, and Padilla v. Kentucky, August 31, 2010, Joseph Ditkoff

In Padilla v. Kentucky, the Supreme Court decided that the Sixth Amendment’s guarantee of the effective assistance of legal counsel requires that counsel inform his client whether his guilty plea in a criminal case carries a risk of deportation. The Court’s decision significantly expands the reach of the traditional Sixth Amendment constitutional protection afforded criminal defendants via the long-established rule of Strickland v. Washington, and, concomitantly, significantly alters the landscape of what courts will consider to be adequate representation in criminal proceedings. The precise contours of the right, thus expanded, will be left to the vagaries of the common law in both state and federal court to map out. This short article will discuss Padilla and some of its forebears and foreshadowings. As will be seen, the Supreme Court has again left prosecutors, defense counsel, and judges with a somewhat muddy decision that leaves the hard work for later, and for others…

In light of the discussion ongoing about Denedo’s end, I thought this might be an interesting read.

Don’t keep your car smelling nice

September 13, 2010 | The Law Office of Philip D. Cave

I noticed these two cases on FourthAmendment.com today.

Defendant was stopped for overtinting, and the officer could smell marijuana, the defendant was really nervous, and the car had 18 air fresheners hanging inside. The subsequent search produced 574 grams of cocaine. The search was valid. Richardson v. State, 2010 Ga. App. LEXIS 827 (September 8, 2010).

Defendant was stopped for a traffic offense, and the car had the overwhelming odor of air freshener, defendant could not say where he was going, and he was getting increasingly nervous as the stop continued. That was reasonable suspicion. Wilson v. State, 2010 Ga. App. LEXIS 853 (September 10, 2010).

Up periscope

September 13, 2010 | The Law Office of Philip D. Cave

The Pittsburgh Post-Gazette has a book review of Richard North Patterson’s new book which is about a court-martial. Yes, it’s about a Army officer who returns from Iraq, kills his former commander, and

As the case unfolds, Mr. Patterson gives the reader a tutorial in military justice as well as the complexities of PTSD. He also makes clear his stand against the war through testimonies from personnel involved with McCarran in Iraq.

The tension rises throughout the court-martial: Will the judge allow PTSD as a defense? Will the jury believe how the war changed not just McCarran, but the man he killed?