Court-Martial Trial Practice Blog

who is the victim

January 29, 2014 | The Law Office of Philip D. Cave

No. 14-0134/AR. U.S. v. Brett M. GASKILL. CCA 20110028. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010), we note that the proper victim in Specifications 2, 3, and 4 of Charge V was the merchant who provided the goods and services upon false pretenses, not the debit cardholder/Soldier. However, the charge sheet, stipulation of fact, and providence inquiry focused on the three Soldiers as victims, and there was no discussion on the record of whether the merchants were victimized. See Lubasky, 68 M.J. at 263. Accordingly, it is ordered that said petition is granted on the following issue:

WHETHER APPELLANT COMMITTED LARCENIES OF THE PROPERTY OF THREE SOLDIERS BY USING THEIR BANK CARDS WITHOUT AUTHORITY.

The decision of the United States Army Court of Criminal Appeals is reversed as to Specifications 2, 3, and 4 of Charge V, and the findings of guilty as to those specifications are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may either dismiss Specifications 2, 3, and 4 of Charge V and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected specifications and the sentence.

Beware trial defense counsel

January 28, 2014 | The Law Office of Philip D. Cave

The CAAF has decided United States v. Moss.

The decision involves jurisdiction to appeal to CAAF for a Soldier who was AWOL at trial, apparently AWOL at the time the case was heard at ACCA, and AWOL at the time her appellate defense counsel petitioned CAAF.

Read the case. It may be wise for trial defense counsel to amend the standard pre-trial advice of appellate rights to fit into the Moss decision.

In the Supremes

January 26, 2014 | The Law Office of Philip D. Cave

SCOTUSBlog notes the following criminal law related petitions at the Court which may – or may not – be granted tomorrow.

Warger v. Shauers

13-517

Good character is admissible

January 20, 2014 | The Law Office of Philip D. Cave

Despite Congress’s meddling with certain rules of evidence as a way to ensure convictions in sexual assault cases, we should consider that in almost every sexual assault case good character evidence will in fact be admissible and have a role.

We are constrained to sustain the assignments which complain of the exclusion of testimony offered to show defendant’s general reputation for truth and veracity. It is not necessary to cite authorities to show that, in criminal prosecutions, the accused will be allowed to call witnesses to show that his character was such as would make it unlikely that he would be guilty of the particular crime with which he is charged. . . the evidence was admissible, whether or not the defendant himself testified.

Edgington v. United States, 164 U.S. 361 (1896).

A resource

January 20, 2014 | The Law Office of Philip D. Cave

The Federal Defender at www.fd.org has some useful information, guides, updates, etc., etc., etc.

Two years of federal evidence

January 20, 2014 | The Law Office of Philip D. Cave

Once again one of my two favorite evidence blogs (federal evidence review) has published the annual “review” for 2013 and for 2014.

Key Evidence Issues During 2013

1. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Kansas v. Cheever: Allowing The Government To “Follow” Where The Defense Leads On Defense Expert Mental State Evidence

Humor in uniform

January 15, 2014 | The Law Office of Philip D. Cave

I was over at ACCA today for the oral argument in United States v. Martin.

As best I could tell CPT Martin was really drunk at the time of the alleged offenses. A cab driver who dropped him off apparently testified that “he was the most drunk person he’s ever seen,” or words to that effect. The gate guard said that “he could have been knocked over with a finger push,” or words to that effect. And there was testimony that he could have been around a 2.5.

So, one of the judges asks appellate government counsel various questions about the appellant’s state of intoxication. Naturally the government was downplaying it because the argument was he was too drunk to form a specific intent for attempted rape. Eventually the judge asked if the appellant had been a complaining witness of sexual assault, would he have been drunk enough for a substantial incapacitation charge.

National Prosecution Standards

January 14, 2014 | The Law Office of Philip D. Cave

1. The Prosecutor’s Responsibilities

1-1.1 Primary Responsibility

The prosecutor is an independent administrator of justice. The primary responsibility of a

A little more on forensics

January 14, 2014 | The Law Office of Philip D. Cave

It is unusual in military cases to have evidence of microscopic hair analysis. But, it’s worth keeping up on, just in case. Also, the point below is further substantiation of the National Academy of Sciences critique of forensic “science” evidence. A 2009 news release on the NSA report had this to say:

A congressionally mandated report from the National Research Council finds serious deficiencies in the nation’s forensic science system and calls for major reforms and new research. Rigorous and mandatory certification programs for forensic scientists are currently lacking, the report says, as are strong standards and protocols for analyzing and reporting on evidence. And there is a dearth of peer-reviewed, published studies establishing the scientific bases and reliability of many forensic methods. Moreover, many forensic science labs are underfunded, understaffed, and have no effective oversight.

Interestingly, in April 2009, before the NSA report was released, the FBI published a short piece about hair examination, which seems to support the reliability of MHE.

I don’t remember

January 12, 2014 | The Law Office of Philip D. Cave

The ACCA has issued an unpublished opinion in United States v. Barnes.

We all of us have dealt with the client who wants to – and should – plead guilty to some offenses, but he tells you he was so drunk at the time he remembers nothing, or at least very little. Now what, can he be provident.

The basic answer is yes. We have the general principle: