Court-Martial Trial Practice Blog

Expungement

August 1, 2009 | The Law Office of Philip D. Cave

Civilian attorneys get quite a few questions about expunging court-martial convictions.

The answer is no, it can’t be done in the same way that many states allow for an expungement. The closest way to have it removed from your record is to have a court-martial reversed for factual sufficiency at the CCA, or get a presidential pardon.

I don’t think it’s IAC not to tell the client about the lack of an expungement procedure. There are a myriad of collateral consequences so it seems to me that you should add this little item to your checklist of advice to the client.

Fingerprint evidence and testimony

August 1, 2009 | The Law Office of Philip D. Cave

Tenth Circuit Joins Consensus On Admissibility Of Fingerprint Evidence

In conspiracy to possess marijuana and illegal firearm possession prosecution, expert fingerprint testimony identifying the defendant’s thumb print on guns and ammunition was admissible under FRE 702 and Daubert even though the defendant raised “questions regarding whether fingerprint analysis can be considered truly scientific in an intellectual, abstract sense”; circuit extensively explored the current argument regarding admissibility of fingerprint evidence under the ACE-V (analysis, comparison, evaluation, and verification) process for determining matches applying the Daubert admissibility factors, in United States v. Baines, __ F.3d __ (10th Cir. July 20, 2009) (No. 08-2098).

FederalEvidenceBlog also accounts for the other circuits on how they rule on such issues.

Sailor in Pendleton Brig commits suicide

August 1, 2009 | The Law Office of Philip D. Cave

Sailor Charged With Murder Kills Self

August 01, 2009

Military.com

A Navy man accused of killing another Sailor at Camp Pendleton in Southern California took his own life Friday in his cell, officials said.

Not political fall-out

July 29, 2009 | The Law Office of Philip D. Cave

Here’s an interesting side on the recent exploits of South Carolina’s itinerant governor.

Air Force Reserve opts not to discipline Mark Sanford over marital affair

By Tim Smith • Staff writer • July 29, 2009

COLUMBIA — The U.S. Air Force Reserve considered disciplinary measures against Gov. Mark Sanford over his extramarital affair but has decided to take no action, his command office told The Greenville News.

New CAAF case

July 27, 2009 | The Law Office of Philip D. Cave

CAAF has issued an opinion in United States v. Smead, __ M.J. ___ (C.A.A.F. 2009). Chief Judge Effron wrote the opinion for Judges Baker and Stuckey, and Judges Ryan and Erdmann concurred in the judgment.

Arizona v. Gant comment.

July 27, 2009 | The Law Office of Philip D. Cave

Here is an interesting post by Prof. Colin Miller on his EvidenceProfBlog about search incident to seizure.

Arizona v. Gant: A Windfall For The Government?

I want my stuff back!

July 25, 2009 | The Law Office of Philip D. Cave

How many clients ask about property taken by law enforcement and not promptly returned, or had their personal property lost or stolen while they are in pretrial confinement?

There are several methods I’ve used to jog the system, sometimes successfully.

a. Property seized in a search with no evidentiary value: Ask the TC and case agent for an accounting and return of property not considered of evidentiary value; make a motion for return of property, citing as analogy Fed. R. Crim. Pro. 41(g);

Technology tip

July 25, 2009 | The Law Office of Philip D. Cave

Do you get .pdf documents? Do you want to use the text from the .pdf document in other documents? Do you want to edit the .pdf document?

I use PureText to copy parts of text for cut-and-pasting of small parts of a .pdf document. PureText is free. You highlight what text you want to copy and paste, click PT, and it removes all of the formatting and meta-clutter so it is easier to paste and edit into a document. Or you can take a “shot” of a part of the document and insert it as a picture.

Here is a free way to convert the whole .pdf document to a Word or .rtf file which can then be manipulated. (I stopped using Adobe a long time ago, it’s very expensive even for updates, Nitro is a cost-effective alternate to Adobe so you may also want to look into Nitro.)

Careful who you speak to and what you say.

July 24, 2009 | The Law Office of Philip D. Cave

I routinely counsel clients not to talk with anyone regarding their case. Here is a new Navy case which is a reminder.

There is no evidence to suggest the appellant was engaged in plea discussions or negotiations with LtCol C at the time he repeated the advice from his father-in-law. The record reflects the appellant spontaneously mentioned the advice he received from his father-in-law to LtCol C, a friend and mentor. As in United States v. Watkins, 34 M.J. 344, 348 (C.M.A. 992), LtCol C was acting neither as nor on behalf of the CA or the staff judge advocate, nor was he authorized to engage in plea negotiations with the appellant. The statement was voluntarily made and its admission was not an abuse of discretion.

United States v. Toschiaddi, No. NMCCA 200800044, 2009 CCA LEXIS 246, at *5–6 (N-M. C . Ct. Crim. App. 16 July 2009).

Self-defense – again.

July 24, 2009 | The Law Office of Philip D. Cave

I have previously commented about evidence of the victim’s character for violence and specific incidents. To refresh – there are several ways the assault victim’s character for violent behavior can become relevant and admissible in an assault case.

a. The defense puts on opinion testimony about the victim’s violent, threatening, or assaultive non-peaceful character, as part of a self-defense case.

b. The prosecution puts on opinion testimony of the victim’s character for peacefulness.