Court-Martial Trial Practice Blog
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New NMCCA cases worth the read
The NMCCA has issued two significant opinions this week, one of which is worth the read while the United States prosecution of Bowe Bergdahl continues.
United States v. Solis, __ M.J. ___ (N-M Ct. Crim. App. 2016). The case presents discussion of continuing issues relating to the nature of the proof and member (jury) instructions in military sexual assault cases. These types of cases, especially where alcohol is involved present complex challenges to the military defense counsel.
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Article 120(b)(3)(A) of the UCMJ is unconstitutional because the language “incapable of consenting to the sexual act because she was impaired by . . . alcohol” is unconstitutionally vague.
How can this happen
The Army Court of Criminal Appeals will hear oral argument on Wednesday, August 3, 2016, at 10 a.m., in United States v. Ahern, No. 20130822. The court will consider the arguments of counsel on the following two issues.
I. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE ALLOWED TRIAL COUNSEL TO ARGUE THAT APPELLANT FAILED TO DENY SEVERAL PRETRIAL ALLEGATIONS “BECAUSE HE WAS GUILTY.”
II. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE PERMITTED TRIAL COUNSEL TO ARGUE THAT APPELLANT’S CONSULTATION WITH A CRIMINAL DEFENSE ATTORNEY WAS INDICATIVE OF HIS GUILT.
Oooops
In today’s CAAF Journal we see:
No. 16-0615/AF. U.S. v. Zavian M.T. Addison. CCA S32287. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER APPELLANT IS ENTITLED TO NEW POST-TRIAL PROCESSING BECAUSE THE ADDENDUM TO THE STAFF JUDGE ADVOCATE’S RECOMMENDATION FAILED TO CORRECT AN ERROR IN APPELLANT’S CLEMENCY SUBMISSION.
If
If you are being prosecuted in the Air Force.
If your military defense counsel is not raising this issue.
WHETHER THE AFCCA ERRED WHEN IT FAILED TO GRANT RELIEF WHERE THE MILITARY JUDGE INSTRUCTED THE MEMBERS, “IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY,” WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.
Judicial umpiring-WTR
Brett M. Kavanaugh, The Judge as Umpire: Ten Principles, 65 Cath. U. L. Rev. 683 (2016).
First, and most obviously, a good judge, like a good umpire, cannot act as a partisan.
Fifth, at the same time, to be a good judge and a good umpire you have to possess some backbone.
How broad is the evidentiary privilege in MRE 513
Very broad.
Or, that’s how I interpret a 2-1 Order in H.V v. Kitchen and Randolph (RPI), MISC D. No. 001-06 (C.G. Ct. Crim. App. 8 July 2016).
At trial, the defense sought mental health records of the complaining witness. After litigation on the issue, the military judge ruled
Prosecutors must disclose Brady-plus material about police misconduct
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
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
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.