UCMJ Tag Archives — Page 36 of 50 — Court-Martial Trial Practice Blog

Denial of counsel of choice

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

There are a number of ways denial of counsel of choice can come up, most frequently related to the availability of civilian counsel. Here’s an interesting one.

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). The opinion is written by Justice Scalia. Here are the important part of the opinion:

In sum, the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation "complete."

Several new CAAF opinions

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

United States v. Cowgill.

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN
DENYING THE DEFENSE MOTION TO SUPPRESS ALL EVIDENCE
FROM APPELLANT’S HOME.

The two underlying point were: potential erroneous information given for a search warrant (statements were factually incorrect, but believed to be true by the detective at the time), and if there was erroneous information, was there enough probable cause without the erroneous information.

NMCCA decision setting aside

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

United States v. Sezginalp:

There is an interesting appellate procedural history. The court intially denied various efforts to have a post-trial R.C.M. 706 evaluation. But, the court did sua sponte reconsider the denial and did order a new R.C.M. 706 examination.

On 6 January 2010, the ordered R.C.M. 706 evaluation report was released. The evaluation found that during all relevant time periods, the appellant suffered from Schizophrenia (paranoid type), a severe mental disease, but that at the time of his offenses, the appellant was able to appreciate the nature and quality of his actions. The report, however, concluded that at the time of his trial, the appellant’s mental disease rendered him unable to understand the nature of the proceedings against him or to cooperate intelligently in his defense.

Up periscope 19

March 2, 2010 | The Law Office of Philip D. Cave

WRAL.com reports that members selection has begun in the Hennis court-martial.

x reports that the military judge has declined to delay trial pending the outcome of Hennis’s District Court jurisdictional case.

Navy Times reports:

CAAF and Article 62 appeals

February 26, 2010 | The Law Office of Philip D. Cave

CAAF has issued an opinion in United States v. Bradford, a government appeal of a pretrial ruling.

The appeal was on a military judge declination to pre-admit a Lab Package in a urinalysis case. AFCCA had no trouble saying that a declination to pre-admit evidence is appealable. CAAF had no trouble correctly saying that AFCCA was wrong.

The prosecution proffered the standard lab package and told the military judge they’d produce an expert at trial to discuss the package. That basically was it. On that the military judge was supposed to pre-admit the package. Rather than pre-admit, the military judge told the prosecution that they’d need to produce witnesses and pull out some pages that might be pre-admitted separately. The prosecution then ‘threatened’ the military judge that they were going to appeal. Notably the military judge expressed an opinion that his “ruling” wasn’t appealable. And it appeared the military judge was going to hold the prosecution to its burden to produce actual, like real, evidence. Rather than produce evidence and testimony necessary to lay a foundation for the documents either in the motion or at trial, the prosecution, rather peevishly to my way of thinking, appealed.

Major Hasan update

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

The Article 32, UCMJ, hearing has been rescheduled for 1 June 2010.

KWTC.com reports.

Supreme Court “Miranda” cases

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

The court has decided Maryland v. Shatzer (background documents on SCOTUSWiki here ) and also Florida v. Powell (background documents on SCOTUSWiki here). Both cases relate to “Miranda” rights and confessions. In Powell, the issue was how much detail must go into a “Miranda” warning in order to be sufficient, in Shatzer the court addresses the break in custody situation.

In Powell the issue was whether the rights advice given properly conveyed to the suspect that he had the right to counsel present during questioning and not just before being questioned. After an interesting discussion showing how ambiguous the language used was, the court found the appellant was adequately advised. Interestingly, the court noted that:

The standard warnings used by the Federal Bureau of Investigation are exemplary. They provide, in relevant part: “You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning.” Ibid., n. 3 (internal quotation marks omitted). This advice is admirably informative, but we decline to declare its precise formulation necessary to meet Miranda’s requirements. Different words were used in the advice Powell received, but they communicated the same essential message.

Coast Guard appellate case of interest – and providency

February 23, 2010 | The Law Office of Philip D. Cave

Is a false marriage certificate to claim otherwise unauthorized allowances an official document? No, it would be the presentation of that document as showing an entitlement that is the false statement, not the marriage certificate itself. The court also found the appellant’s plea to a conspiracy to commit a false official statement as improvident. The providency issue seems as much related to the military judge’s questioning method, rather than a factual basis. This was a not untypical plea where the military judge had to help the accused through providency by getting yes / no answers to leading questions.

United States v. McClary.

Here are some stream-of-consciousness thoughts for the defense counsel.

Up periscope WE210210

February 22, 2010 | The Law Office of Philip D. Cave

Pilot Online reports:

Five sailors could offer testimony contradicting the government’s main witness in the controversial prosecution of three Navy SEALs accused of mistreating a suspected Iraqi terrorist.

But whether they’ll take the stand is in question after the government denied their requests for immunity on Friday.

Col Murphy retired at O-2 rank (corrected)

February 22, 2010 | The Law Office of Philip D. Cave

An Air Force colonel will be forced to retire as a first lieutenant, an Air Force review determined.

Col. Michael D. Murphy, convicted in April 2009 by a general court-martial for failing to tell the Air Force he was disbarred as an attorney in 1984, will be retired from the Air Force effective April 1 as a first lieutenant, Air Force spokesman Lt. Col. Barbara Carson said Monday.

By operation of 10 U.S. Code Sec. 1407, his monthly retirement check will be based on the amount of his last check. That last check will be based on his being an O-2 with 20 plus years of service. $4377.30 is the current rate for over 20 years, still nothing to sniff at under the circumstances.