UCMJ Tag Archives — Page 36 of 51 — Court-Martial Trial Practice Blog

Prosecutors and discovery

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

A case pending at the U.S. Supreme Court was recently settled out of court, and the case withdrawn from consideration. It appears that there has been a settlement of $12M, for prosecutorial misconduct.

"This means prosecutors who step outside their traditional role and who act as investigators (in criminal cases) can still be subject to civil rights lawsuits just as police would be."

Prosecutors are normally immune from lawsuits involving work during trials. The 8th U.S. Circuit Court of Appeals decided in McGhee vs. Pottawattamie County in 2008 that plaintiffs could sue prosecutors under civil rights statutes if the alleged wrongdoing arose from investigatory work before the trial started.

Up periscope – WE070310

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

Stars & Stripes reports.

The Army recently asked 45 of its soldiers in the highest enlisted rank to retire for substandard performance, past criminal convictions, problems with alcohol, fraternization or sexual harassment in their recent pasts.

Of the 45 sergeants major whose records were flagged under the newly reinstituted Qualitative Management Program, 28 complied, putting in their retirement paperwork and quietly fading away.

But 15 fought it, arguing that they were valuable Army assets despite any previous incidents. A panel of their peers usually agreed: 12 of the 15 were allowed to remain on active duty. The remaining three were forced to retire, however.

Pretrial confinement post-conviction

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

Here’s the scenario:

Client is convicted at court-martial. Sentencing is to take place the next day, or a Monday after a Friday conviction. Based on the charges and the evidence there’s a reasonable likelihood the client will get some confinement. The command wants to put the client in pretrial confinement pending sentencing. Can they?

1. If the client was already confined, the confinement can be continued.

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.