The “unit’ of possession for a CP prosecution is the container–a computer, a cellphone, or a plug-in drive, each is a separate unit.
Everything in the one unit must be charged as only one specification.
The Army Court of Criminal Appeals decided United States v. Mobley on 22 June 2018.
This Court unequivocally endorses the Supreme Court’s observation that “[f]ederal courts have an independent interest in ensuring that … legal proceedings appear fair to all who observe them.” Wheat v. United States, 486 U.S. 153, 160, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988).
United States v. Boyce, 76 M.J. 242, 253 (C.A.A.F. 2017).
The NMCCA has decided United States v. Brown — one of the questions:
I, currently, ask for the following as a minimal initial discovery request.
Any and all adverse or negative information contained in the personnel files of any federal or state law enforcement agent who may have worked on this case in any manner. This includes but is not limited to Any “on-the-job” or field training records, training test score results, evidence of credentials having ever been suspended or revoked. The defense does not agree that United States v. Henthorn sets the appropriate standard of production on this issue. In fact some years ago, counsel had a case where the NCIS gave a Henthorn disclosure to the prosecutor that turned out to be substantially and materially false—which surprised the trial counsel at trial.
We can expand the initial request as more information comes to light. I encourage counsel to review United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004).
The Supreme Court decided Ortiz v. United States, an appeal from CAAF, today. Bottom line,
This Court has jurisdiction to review the CAAF’s decisions. The judicial character and constitutional pedigree of the court-martial
system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex.
The U.S. Supreme Court today took up Garza v. Idaho, No. 17-1026, involving the intersection of two recurring themes: lawyer decisions v. client decisions in the conduct of a case and how to apply rules developed for trials to the context of plea-bargained cases, which most cases are now.
In the course of a criminal trial, the lawyer makes most of the decisions, but a few are reserved for the client personally. This “rule” or assignment of duty applies in courts-martial. Whether to appeal is a client decision. In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Court dealt with the issue of ineffective assistance claims for a lawyer’s failure to appeal, with or without consulting the client. If the lawyer is found to have performed deficiently, the “prejudice” question is only whether there is a reasonable probability the client would have appealed, not that he would have prevailed on appeal.
My first GCM involved eyewitness identification and a motion to suppress based on an improperly suggestive show-up when the client was arrested. He was handcuffed in the back of the police car and the armed robbery victim was brought to the police car and asked ”is that him” or words to that effect. Since then I’ve not had a case where there was a serious question of identification. That said, Prof. Miller, one of my favorite evidence bloggers has this piece.
He first notes that misidentification contributed to 75% of exoneration cases. Then he moves to Mil. R. Evid. 801 and how an out of court identification may not he hearsay.
From time to time I recommend articles, cases, or books to read that may be of interest and help to practitioners. Here are couple of plays to add to the mix, courtesy of Global Military Justice Reform blog, and I quote.
Anthony Thommasini of The New York Timeshas written this strong and quite positive review of the opera “An American Soldier,” concerning the suicide of U.S. Army Private Danny Chenand the ensuing court-martial. It’s playing in St. Louis.
Can you think of another opera that concerns military justice? Benjamin Britten‘s Billy Budd and the more obscure My Lai come to mind. There is also an Overture to The Andersonville Trial, about the notorious Confederate prison camp.
Once the MCIO gets a “confession” or DNA in a sexual assault case, it seems, they stop investigating–bad.
Whether you have DNA or not–whether you are trial counsel or defense counsel–gathering non-DNA evidence can be vital to your case.
Complaining witness says she and accused were at a bar drinking and the accused later took advantage of her because she was drunk. OK, where are the bar receipts? No, the MCIO is unlikely to ask and by the time the defense comes on board the register receipts may not be available. Note, I have had several cases where the client has been saved by going to the bar with his credit card and getting the receipts. The receipt tells you a number of things: time paid (possibly related to time left the bar when paying the tab), (depending on the software) the number and type of drinks (huuum…four people in the party, four drinks, and just how many did the CW really drink?) Or, how about the video from the base entry point when the CW walks or drives or is driven on base? Is it possible the video helps show how unintoxicated the CW was or wasn’t? CCTV? Remember, the MCIO doesn’t usually care about this stuff.
Court-Martial Trial Practice Blog
