sixth amendment Tag Archives — Court-Martial Trial Practice Blog

You could have this

October 24, 2010 | The Law Office of Philip D. Cave

For all of the criticisms of military justice and the UCMJ, you don’t have this at court-martial as tipped by Sentencing Law & Policy blog.

Cargill, a federal public defender, was perturbed by a rarely discussed U.S. court rule that critics say conflicts with the presumption of judicial openness. In the Western District of Virginia, as in many other U.S. court districts, a probation officer makes a secret sentencing recommendation to the judge. Cargill accidentally saw the probation officer’s recommendation for his client. The report was "misleading and inaccurate," Cargill wrote in a protest letter. (Emphasis added.)

Here is a link to the full article in the Roanoke (VA) Times.

In the Supremes

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

SCOTUSBlog notes two new petitions with potential impact on a court-martial practice under the UCMJ.

Title: NIBCO, Inc. v. Rivera
Docket: 10-383
Issue(s): (1) Whether a court of appeals must conduct a comparative juror analysis when reviewing a claim under Batson v. Kentucky, even though the comparative analysis was neither raised before nor considered by the trial court below; and (2) whether a court of appeals that identifies a suspected Batson problem based on a comparative juror analysis never considered by the trial court can vitiate a trial without remanding to allow the trial court to consider the new arguments and evidence in the first instance.

Title: Dunn v. Louisiana
Docket: 10-386
Issue(s): Whether a court’s modification of the three-step Batson v. Kentucky analysis, requiring the defense to prove that its strikes were not motivated by race, while simultaneously requiring it to prove that the state’s strikes were motivated by race, violates the Sixth and Fourteenth Amendments.

Crawford, Melendez-Diaz, Briscoe, and Blazier stew

September 17, 2010 | The Law Office of Philip D. Cave

Here is Professor Friedman’s post about Briscoe.

The Virginia Supreme Court today issued its decision in Briscoe on remand from the United States Supreme Court. . The court held that the former Virginia statutory scheme (under which the defendant had to call a lab analyst as his witness if he wanted to examine the analyst) was unconstitutional. This, of course, was the point that I sought to establish in bringing the petition for certiorari; Melendez-Diaz made the point clear, and now the Virginia Supreme Court has drawn the obvious conclusion.
The court held that the error was harmless in Briscoe’s case, but Cypress’s conviction was reversed. I expect his case will plead out.

Here are the SCOTUSWiki links on the Supreme Court litigation.

ACCA on IAC

August 20, 2010 | The Law Office of Philip D. Cave

In United States v. Darling, ACCA affirmed because appellant could not establish the prejudice prong of an IAC “claim.” This is worth reading for those cases where the accused is found not guilty after a contested case, but during sentencing there is a concession that the accused was actually guilty. For the defense counsel this case addresses the issues of how to do sentencing and try to get a lower sentence.

Appellate defense counsel initially raised one assignment of error to this court – that appellant’s conviction for uttering checks with intent to defraud was legally and factually insufficient. Upon our initial review, we specified the following issues:

I.

Speedy trial

May 10, 2010 | The Law Office of Philip D. Cave

Allen v. United States Air Force, No. 08-3450 (8th Cir. 7 May 2010).

Joseph Allen served in the United States Air Force (Air Force) for more than twenty years, from January 14, 1985, until September 30, 2006, when he voluntarily retired and received an Honorable Discharge. During his service, on February 18, 2004, the Air Force initiated general court-martial proceedings against Allen, alleging that he took indecent liberties with a minor child and contributed to the delinquency of two minor children. The general court-martial trial began more than two years later, on March 21, 2006. Allen was convicted, and his sentence included a reduction in grade from Master Sergeant (E-7) to Senior Airman (E-4), significantly reducing his retirement benefits. Following the conviction, Allen filed a complaint against the Air Force and nineteen individuals in the District Court for the District of North Dakota, claiming that his Sixth Amendment speedy trial rights were violated. The district court^{[ 2 ]} granted the Air Force’s motion for summary judgment. Allen appeals, and for the following reasons, we affirm. Allen also moves to supplement the record, and we deny his motion.

Following his conviction, Allen requested that the court-martial’s findings and sentence be set aside and that the charge and specifications be dismissed because the military judge should have granted Allen’s motion to dismiss for violation of his speedy trial or due process rights. In a memorandum, the Director of the Air Force Judiciary, Colonel Roberta Moro, acting pursuant to Article 69 of the UCMJ, reviewed the record of the court-martial, determined that no relief was warranted and declined to send the case to the Air Force Court of Criminal Appeals because the court-martial’s findings and sentence were supported by law. On September 30, 2006, Allen voluntarily retired from the Air Force and received an Honorable Discharge.

Crawford, Melendez-Diaz, Briscoe – and now Pendergrass v. Indiana

February 9, 2010 | The Law Office of Philip D. Cave

Here is a link to the full cert petition in Pendergrass v. Indiana. The question presented is:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009).