Court-Martial Trial Practice Blog

Coerced confessions case.

August 22, 2009 | The Law Office of Philip D. Cave

ACCA has issued a Memorandum Opinion in United States v. Markis, ARMY 20070580 (A. Ct. Crim. App. 18 August 2009).

Appellant had given three pre-trial admissions to CID. The defense sought to exclude the confessions as being coerced. The military judge permitted the defense to present expert testimony on coerced confessions, specifically it appears how the Reid Technique may lead to coerced confessions. However, the military judge refused to allow the defense to ask hypothetical questions unless the defense first asked for an Article 39(a), UCMJ, session to get a ruling. It appears that the defense did not seek to ask a hypothetical and did not ask for an Article 39(a) once the prosecution witnesses had testified and they had laid a sufficient foundation to get to the point where a hypothetical might be offered.

The opinion has a nice little review of what you must do, by way of proffer, to preserve an objection.

More on SAUSA

August 21, 2009 | The Law Office of Philip D. Cave

SAUSA an interesting piece from Volokh which I posted the other day.

It’s black letter law that a prosecutor may not ask a defendant to comment on the truthfulness of another witness, United States v. Combs, 379 F.3d 564, 572 (9th Cir. 2004), United States v. Geston, 299 F.3d, 1130, 1136 (9th Cir. 2002), but the prosecutors here did just that. One prosecutor asked: “You’re saying that [they’re] going on the stand, swearing an oath to testify to the truth and then lying . . . ?” He even pitted his own credibility against Harrison’s, asking, “So I’m in the conspiracy against you, is that right?” These were not isolated incidents: Improper questioning was an organizational theme
for the prosecutor’s entire cross-examination.

The vouching was similarly patent. The government was entitled to rebut Harrison’s suggestion that Officers Jenkins and Kirby were motivated to lie, but it crossed the line when one prosecutor mentioned during closing that the officers had been promoted “with no adverse action whatsoever” after an internal military investigation. This clearly “suggest[ed] that information not presented to the jury,” but available to the investigators, supported the officers’ testimony. United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). And it would be hard to find a clearer case of “placing the prestige of the government behind a witness,” id., than the prosecutor’s statement that the “[g]overnment stands behind” Officers Jenkins and Kirby.

The government in its argument then:

Post-trial delay

August 21, 2009 | The Law Office of Philip D. Cave

The issue of post-trial delay and prejudice is on the front burner again as a result of CAAF’s decision in United States v. Bush.

Here is a repeat of part of a post of mine from April 2008.

1. After trial — sit down with the client and explain the post-trial process specific to the case. This is critical because the boilerplate post-trial advice given by the military defense and military judge is just that, generic non-specific advice.

Calley of My Lai speaks.

August 21, 2009 | The Law Office of Philip D. Cave

Thursday, Columbus TV commentator and retired news anchor Al Fleming managed to do what every major network, cable news outlet, newspaper, magazine and blogger has failed to do for more than four decades: get William Calley to speak publicly about his personal day of infamy.

Ledger-enquirer.com, 21 August 2009.

AN EMOTIONAL WILLIAM CALLEY SAYS HE IS SORRY

Your country wants you!

August 20, 2009 | The Law Office of Philip D. Cave

VILSECK, Stars & Stripes Germany — A manhunt is under way for a U.S. Special Forces soldier who fled after being convicted of kidnapping and sexually assaulting a German woman.

Sgt. 1st Class Kelly A. Stewart — who was found guilty of multiple charges including kidnapping, forcible sodomy and aggravated sexual assault of a woman in an August 2008 incident — was last seen early Thursday morning by his escort at an on-post hotel.

Your
Country Wants

Stewart, 36, is an Iraq war veteran who trains fellow Special Forces soldiers at the International Special Training Center in Pfullendorf.

“He’s an angry animal and not a human,” said the 29-year-old victim, standing outside the Vilseck courthouse Thursday morning after learning he had disappeared. “I know how dangerous he is. It’s impossible to believe that they left him alone last night.”

SAUSA

August 20, 2009 | The Law Office of Philip D. Cave

Here’s an interesting piece from Volokh.

It appears the often bad habits of the military court-room have shown up in federal district court. The appellate judges don’t seem amused, but neither do they find prejudice. Tolerated misconduct without findings of prejudice don’t discourage, they encourage. However, here the defense counsel didn’t help – actually didn’t object.

The Nightmare of Every Rookie Prosecutor: Ouch. From Kozinski’s majority opinion:

What’s published, unpublished and precedential?

August 19, 2009 | The Law Office of Philip D. Cave

Recently CAAFLog had a discussion about military appellate cases and publication or non-publication.

PACER is a pay to use system that allows access to lots of federal courts documents that are “publically available” but at a fee.

Recently a technology blogger I follow FutureLawyer had a comment about RECAP and PACER.

Suits & Sentences

August 19, 2009 | The Law Office of Philip D. Cave

Justice delayed is….oh, never mind

That business about justice delayed being justice denied apparently has a statute of limitations. At least, that must be the way it seems for Marco A. Bush, a former private first class in the Marine Corps.

I like to read S&S because of their ability to reduce an issue to its core point.

As spelled out in the new opinion: "The record was ‘apparently lost in the mail for over six years.‘"

Hamdaniyah Dubay

August 19, 2009 | The Law Office of Philip D. Cave

A Dubay hearing is about to get underway in United States v. Hutchins.

A members case to make a point?

August 18, 2009 | The Law Office of Philip D. Cave

Travis Bishop’s court-martial

August 18, 11:30 AM Dallas Progressive Examiner Herschel Tomlinson