Court-Martial Trial Practice Blog
Why Facts Don’t Change Our Minds
This is an interesting read on what I usually refer to as confirmation bias.
Have Briefcase (and
Internet), Will TravelFor a Free Consultation
Punitive not collateral
I have argued for some time that sex offender registration is punitive not merely collateral to a conviction.
This morning, the US Supreme Court granted cert in Gundy v. US to consider whether Congress’s delegation to the attorney general the power to issue regulations interpreting the federal Sex Offender Notification and Registration Act violates the nondelegation doctrine. That grant on that issue right has Con Law fans buzzing. But sentencing fans more interested in the substance of sex offender registries will want to check out this new commentary by Jesse Kelley in The Hill under the headline “The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal.”
So begins a post by Professor Berman of Sentencing Law & Policy blog.
Let’s object
During trial, the defense counsel make many decisions; sometimes there is an objection to evidence, sometimes not. How the appellate courts deal with allegedly inadmissible evidence depends on whether there was an objection at trial.
If there is an objection the appellate court looks to see if the evidence was objectionable, whether the judge abused his discretion in overruling the objection, and if the error was harmful or harmless (prejudice).
If there is no objection the appellate court may apply the plain error rule.
Hills trailer park
Since United States v. Hills, and then United States v. Hukill, the appellate courts have been trying to sort out quite a few cases on remand. Here is a list of the most recent CAAF actions.
No. 18-0087/AF. U.S. v. Jonathan P. Robertson. CCA 39061. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F.2017), it is ordered that said petition is hereby granted on the following issue:
WHETHER THE UNCONSTITUTIONAL PROPENSITY INSTRUCTION IN THIS CASE WAS HARMLESS BEYOND A REASONABLE DOUBT.
Army–partial return to the public
Go to Army publications
After a lengthy absence from the general public, the following are now, again, available to the public. (ACCA decisions are still not available.
Army Lawyer.
Conflict of interest–at The Supremes
SCOTUSBlog reports a petition of the day is:
Campanelli v. Illinois, 17-1225
Issue: Whether the Sixth Amendment right to conflict-free counsel forbids multiple attorneys in a single public defender’s office from concurrently representing non-consenting, adverse co-defendants.
Shaken baby syndrome–WTR
We have a new book worth the read to litigators facing child assault allegations with Shaken Baby Syndrome “evidence.”
Randy Papetti, The Forensic Unreliability of the Shaken Baby Syndrome: The Book.
Arizona trial attorney Randy Papetti has brought nearly 20 years of experience and research to his valuable new analysis of shaken baby theory in the courtroom, The Forensic Unreliability of the Shaken Baby Syndrome,now shipping from Academic Forensic Pathology International (coupon for $50 off).
How to decide what was decided in split decision with multiple opinions
According to SCOTBlog:
The question of how to count the votes of the justices to decide who won a Supreme Court case – and on what ground – when the court is splintered has baffled lower courts for years. The rule laid out in Marks v. United States purports to answer that question: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by the Members who concurred in the judgment on the narrowest grounds.”
As a practical matter, the Marks rule has compounded rather than cured the confusion surrounding plurality precedent. Yet time after time when the Supreme Court has been confronted with an opportunity to clarify or abandon the Marks rule, it has failed to do so. More often than not, the court simply ignores the rule entirely, leaving lower courts in a hapless interpretative state each time the Supreme Court hands down a plurality decision. This could all change when the court decides Hughes v. United States, which is scheduled for argument on March 27.
Task Force Purple Harbor
Task Force Purple Harbor, a joint NCIS-led Task Force, stood up immediately following Marines United during March 2017, has identified six special courts-martial which have adjudicated cases related to the actual, attempted, or threatened nonconsensual distribution of intimate images. Of note, three of the cases summarized below occurred prior to the substantial measures undertaken by the Commandant of the Marine Corps since March 2017. These cases encompass different types of misconduct addressed under or through the UCMJ and are summarized below. Each case is evaluated independently, based on the unique facts and circumstances of that individual case.
13 March 2018, Special Courts-Martial Cases Involving Intimate Damages to Date.
Deliberate ignorance?
Of interest to military justice practitioners is a new grant of certiorari at the U. S. Supreme Court today. SCOTUSBlog reports:
Okechuku v. United States, No. 17-1130
Issues: Whether, and under what circumstances, the erroneous submission of a deliberate-ignorance instruction is harmless error.