court-martial Tag Archives — Page 9 of 60 — Court-Martial Trial Practice Blog

More on LTC Lakin from the motions hearing

September 8, 2010 | The Law Office of Philip D. Cave

I posted a tease here, and it didn’t take long for Dwight “My Liege” Sullivan to crack the code.

In other words, Judge Lind used the word “embarrassment” in precisely the political question doctrine context (and using almost exactly the same words) as CAAF in New and the Supremes in Baker v. Carr. And all the breathless birther commentary saying that she was attempting to avoid personal embarrassment to President Obama is just so much guano.

As always one has to admire Dwight’s pithy commentary. OK, here is some more (working from a “bigger” computer, netbooks have some limitations).

Should LTC Lakin be embarrassed?

September 7, 2010 | The Law Office of Philip D. Cave

Some reporting of last weeks Article 39(a), UCMJ, hearing appears to attribute the military judge’s ruling to a desire to save the president embarrassment. I believe this is a gross distortion of a small part of what the military judge said. I was there and heard her read her findings and conclusions which were then made a part of the record of trial and available to the parties. These are the relevant references.

The above is from the discussion of the political question doctrine. The sole use of the word embarrassment is here:

Does the above compute with what World Net Daily or others have said? You decide.

Humor in military uniform law

September 4, 2010 | The Law Office of Philip D. Cave

Here is a link to the 3 September 2010 Federal Register for the recent MCM amendments signed by The President.

And the humor you say – – – –

Hat tip to Native and Natural Born Citizenship Explored blog (a not a birther blog).

LTC Lakin continues to spin

September 3, 2010 | The Law Office of Philip D. Cave

Found at birtherreport.com.

LtcTerryLakin

LTC Lakin and Mr. Jensen will be on the Barry Farber radio tonight at 2000.

Apparently the “embarrsassment” language was intended by the judge to alert Congress that they need to begin impeachment proceedings.

NMCCA decisions

September 3, 2010 | The Law Office of Philip D. Cave

NMCCA has released a number of decisions. Several have providency issues and issues not raised by appellate counsel.

United States v. Messias. The court set-aside a finding of guilty to because of an inadequate providence inquiry. No sentence relief granted.

While the providence inquiry establishes facts sufficient to demonstrate that the appellant drove on base and that he believed the driving to be wrongful, there are no facts developed which establish either the invalidity of the appellant’s license, if any, or in the alternative, his failure to have a valid license in his possession. We cannot infer either eventuality from this record. We are left with a substantial basis in fact to question this plea and conclude the military judge abused his discretion in accepting this plea on these facts.

MCM amendments

September 1, 2010 | The Law Office of Philip D. Cave

Here is a link to the Executive Order signed 31 August 2010 with amendments to the Manual for Courts-Martial.

LTC Lakin update

August 31, 2010 | The Law Office of Philip D. Cave

safeguardourconsititution (APF) has an affidavit from LTG T. McInerney in support of LTC Lakin’s discovery request.

Lawyers interested in the legal merits of the issue will likely find themselves dissatisfied with the affidavit. It is a combination of justification for LTC Lakin’s contumacy and reasons why the discovery should be granted. There is no comment on the general failure of most of the rest of the officer corps in continuing to obey unlawful orders. They have not posted the request or motion in support of any request. Once again failing to give full disclosure.

The affidavit appears to also justify the discovery request as a need for public disclosure. This would be IMHO an abuse of process. The purpose of discovery in a criminal proceeding is to aid the defense, not to aid public disclosure for disclosures sake.

New Army Lawyer II

August 29, 2010 | The Law Office of Philip D. Cave

In the July Army Lawyer Judge McDonald has some comments based on his first year on the bench. (I have noted over the years that it takes most judges about a year to get their relative bearing.) I think we can all echo his comments and find a myriad of examples from our own and other cases. What I wanted to comment on though was something in the section about keeping track. If this is not what Judge McDonald does in trial or had not meant to convey then I’ll be the first to apologize, but . . .

I have presided over more than a few judge-alone cases where I have asked more questions than the trial counsel, including asking witnesses about elements that were not covered by the Government.

At page 39 (emphasis added).

New ACCA case

August 29, 2010 | The Law Office of Philip D. Cave

ACCA has released an unpublished opinion in United States v. Delagarza. It’s an odd case.

A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of violating a general order, false official statement, and two specifications of larceny (from his fellow soldiers), in violation of Articles 92, 107, and 121, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 907, and 921 [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for eighteen months, and reduction to the grade of E-1. The military judge further recommended that only twelve months of confinement be approved, if appellant made full restitution. The convening authority, as an act of clemency, limited confinement to fifteen months, and otherwise approved the adjudged sentence.

In his brief, appellant raises one assignment of error, post-trial ineffective assistance of counsel, which warrants discussion, but no relief. (Emphasis added.)

Investigator context testimony

August 25, 2010 | The Law Office of Philip D. Cave

I have been routinely filing a motion in-limine in cases where I expect the prosecution witnesses, typically law enforcement or DFAS, to be providing context testimony. There are several bases to object: hearsay is bootstrapped, there is implied human lie detector testimony, there are Mil. R. Evid. 701 fact wrapped and disguised as to expert testimony, and an implied ‘he wouldn’t be here if he wasn’t guilty.’ Here is another case from the 2d Circuit, thanks to Federal Evidence Review.

In vacating and remanding defendant’s drug conspiracy conviction, Second Circuit rejects the "government’s claim [a]s simply not credible" that an investigating officer’s testimony about a co-conspirator provided necessary background on the investigation; the officer’s testimony regarding his directions to the co-conspirator to phone his "supplier" and the actions taken by the co-conspirator in response was "inadmissible prejudicial hearsay testimony," that impermissibly communicated to the jury that the co-defendant had identified the defendant as his supplier, in United States v. Gomez, __ F.3d __ (2d Cir. August 4, 2010) (No. 08-3829-cr)

It is not often that a circuit takes the government to task on it’s evidentiary arguments. A recent case in the Second Circuit provides an example of a circuit’s reaction to what it considers an implausible argument on the applicability of FRE 801(c). In the case, the circuit vacated the defendant’s sentence and remanded for retrial because the government had introduced at trial hearsay through the testimony of one of the investigating officers in the case.