Court-Martial Trial Practice Blog

Prosecutors must disclose Brady-plus material about police misconduct

July 11, 2016 | The Law Office of Philip D. Cave

There is an excellent post at Volokh Conspiracy.

Here’s the problem in a nutshell: So much at trial can turn on the testimony of a police officer. For a criminal defendant, life and liberty may depend on the ability to impeach the officer’s testimony. The federal constitution, as interpreted by Brady v. Maryland and its progeny, requires prosecutors to disclose to defendants any favorable, material evidence known to the prosecution team, including evidence relating to a witness’s credibility. Much impeachment evidence can be found in a police officer’s personnel file. But in many jurisdictions, a thicket of state laws, local policies, and bare-knuckle political pressure prevents access to the material in these personnel files, despite the federal constitutional requirement to disclose. In the name of protecting police privacy, criminal defendants are denied their due process rights to a fair trial.

Here’s what I ask for in my discovery requests.

Don’t do it, but according to ACCA it may not be a crime

July 6, 2016 | The Law Office of Philip D. Cave

Is it an indecent exposure offense under UCMJ art. 120, to show someone a digital picture of your own genitals?

In a published opinion in United States v. Williams, __ M.J. __, No. 20140401 (A. Ct. Crim. App. Mar. 30, 3016), the Army Court of Criminal Appeals split 2-1 in deciding the case. The court holds that the offense of indecent exposure in violation of Article 120(n) (2006) and 120c(c) (2012) does not include showing a person a photograph or digital image of one’s genitalia.

That’s the BLUF.

Worth the read about false confessions and prosecutorial power

July 3, 2016 | The Law Office of Philip D. Cave

Do you have enough to read, well here’s more.

In sum, the Miranda decision has, at best, had little or no impact on the risks of false confession and wrongful conviction. At worst, the influence of police on Miranda procedures and subsequent litigation has actually made things worse for defendants.

Leo & Cutler, False Confessions in the Twenty-First Century. The Champion magazine, (2016) Forthcoming, Univ. of San Francisco Law Research Paper No. 2016-15.

Military appellate court websites

July 1, 2016 | The Law Office of Philip D. Cave

I am an unabashed advocate of DoD finding a way to have all military courts in a module in PACER, or that DoD develop something similar.

But, until that happens, military appellate court websites are a necessary tool for a military justice practitioner (TC/DC, SJA, MJ). So I do have a sense of frustration when they are down for longer than 24 hours. Here’s my why this is frustrating.

Every morning after my first coffee and cigar I open up the website for each of the military appellate courts. (My feedly feed brings me CAAFLog in the regular stream.)

Army Lawyer-WTR

July 1, 2016 | The Law Office of Philip D. Cave

Two items in the new Army Lawyer.

Working with Civilian Counsel: A Military Practitioner’s Roadmap	By Major Michael G. Botelho.pdf
The Right to See: A Due Process Analysis of Access to Information in Army Adverse Administrative Proceedings	By Major John T. Soron.pdf

Military Law Review-WTR

July 1, 2016 | The Law Office of Philip D. Cave

There are a couple of interesting items in Vol. 224, MIL. L. REV.

MILITARY JUSTICE INCOMPETENCE OVER COMPETENCY DETERMINATIONS, by Major David C. Lai. This is relevant to me because I have an appellate case where there are issues with the client’s current competency and there were at trial.

ALWAYS ON DUTY: CAN I ORDER YOU TO REPORT CRIMES OR INTERVENE? By Major Matthew E. Dyson. This is highly relevant in regard to the ongoing sexual assault issues and considerations of by-stander behavior.

Hooray

June 29, 2016 | The Law Office of Philip D. Cave

After a lengthy down time, CAAF and AFCCA are back on line.

Sentencing in CP cases

June 29, 2016 | The Law Office of Philip D. Cave

The military does not have mandatory minimum confinement sentences (and I hope we never have them). But this federal case is certainly interesting.

US v. Collins, No. 15-3236 (6th Cir. June 29, 2016) (available here).

It’s just sad

June 29, 2016 | The Law Office of Philip D. Cave

It’s just sad that the public, and more importantly practitioners before the court have to rely on handouts from colleagues to get news out there about events in the CAAF.

Here’s another. In United States v. Commisso, CAAF has granted on the following issue.

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING THE DEFENSE’S POST-TRIAL MOTION FOR A MISTRIAL, THEREBY VIOLATING APPELLANT’S RIGHT TO HAVE HIS CASE DECIDED BY A PANEL OF FAIR AND IMPARTIAL MEMBERS, BECAUSE THREE PANEL MEMBERS FAILED TO DISCLOSE THAT THEY HAD PRIOR KNOWLEDGE OF THE CASE.

Worth the Read on military prosecutors

June 25, 2016 | The Law Office of Philip D. Cave

A friend brought to my attention this little item for our weekend reading.

NOTES: PROSECUTORIAL POWER AND THE LEGITIMACY OF THE MILITARY JUSTICE SYSTEM. 123 HARVARD L. REV. 937 (2010).

Is the concluding paragraph correct?