Court-Martial Trial Practice Blog

Obedience to orders

May 5, 2018 | The Law Office of Philip D. Cave

“An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.” The accused has the burden to establish that the order is not lawful. Hughey, 46 M.J. at 154; United States v. Smith, 21 U.S.C.M.A. 231, 234, 45 C.M.R. 5, 8 (1972). Indeed, a professional military institution could not otherwise function without a service member having a duty to obey lawful orders.

United States v. Kisala, 64 M.J. 50, 52, n.5 (C.A.A.F. 2006).

A piece at JustSecurity (WTR) begins:

This is why Sex Offender Registration is complicated

May 2, 2018 | The Law Office of Philip D. Cave

I always tell clients that the specific sex offender registration requirements are complicated and depend on state law. Here’s a reason why.

In New York a defendant can be forced to register as a sex offender for the rest of his life based on accusations a jury rejected. So the state’s highest court ruled last week in a case that illustrates how fear and loathing of sex offenders lead to results that would be recognized as unjust and illogical in any other context.

See more at reason.com

Why Facts Don’t Change Our Minds

May 2, 2018 | The Law Office of Philip D. Cave

Why Facts Don’t Change Our Minds

This is an interesting read on what I usually refer to as confirmation bias.

Punitive not collateral

May 2, 2018 | The Law Office of Philip D. Cave

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

May 2, 2018 | The Law Office of Philip D. Cave

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

April 21, 2018 | The Law Office of Philip D. Cave

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

April 21, 2018 | The Law Office of Philip D. Cave

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

April 11, 2018 | The Law Office of Philip D. Cave

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

April 11, 2018 | The Law Office of Philip D. Cave

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

March 21, 2018 | The Law Office of Philip D. Cave

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.