On 11 April 2008, SCOTUS Blog tells us that the Supreme Court will conference on whether or not to grant a writ of certiorari in:
Docket: 07-785
Case name: Wallace v.
Issue: Whether, under the Due Process Clause, a defendant who pleads guilty retains the right to appeal a pre-trial competency determination.
C.A.A.F. has granted review of an interesting issue about housebreaking. I'm not sure how often this type of issue might come up, but it's worth keeping in your trial notebook.
No. 08-0158/AR.
WHETHER APPELLANT'S PLEAS OF GUILTY TO THE THREE SPECIFICATIONS OF CHARGE II, HOUSEBREAKING, ARE IMPROVIDENT WHERE THE INTENDED CRIMINAL OFFENSE UPON ENTRY, CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN, IS A PURELY MILITARY OFFENSE.
The decision by A.C.C.A. his found HERE.The Rule of Lenity basically says that ambiguities in penal statutes are usually construed in favor of the accused. "The fundamental purposes of the rule are to ensure that defendants have fair warning of the boundaries of criminal conduct; that Congress, not the judiciary, defines criminal liability; and that selective or arbitrary enforcement be minimized." See Crandon v. United States, 494 U.S. 152, 158 (1990); United States v. Kozminski, 487 U.S. 931, 952 (1988).
This Rule of Lenity is a useful rule to remember when arguing not just statutes, but also the meaning of Service regulations. You can use the rule in motions practice, motions under R.C.M. 917, and even verbiage in instructions and argument.
An excellent discussion of the rule, it's history, and applications can be found in the Petitioner's and Respondent's briefs in Burgess v. United States, , now pending at the U.S. Supreme Court, and the Fourth Circuit opinion in that case which is part of Petitioner's brief.
The United States Supreme Court issued a 7-2 decision today, in Snyder v. Louisiana. Justice Alito writes for the majority setting aside the death penalty conviction.
At first blush two items appear important for the trial practitioner: the Court appears to be accepting that a "pretext" argument leads to an inference of discriminatory intent (this is a concept taken from employment discrimination cases), and:
In other circumstances, we have held that, once it is shown that a discriminatory intent was a substantial or motivating factor in an action taken by a state actor, the burden shifts to the party defending the action to show that this factor was not determinative. See Hunter v. Underwood, 471 U. S. 222, 228 (1985). We have not previously applied this rule in a Batson case, and we need not decide here whether that standard governs in this context.
For present purposes, it is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution. (emphasis added.)The court first reminds us that, Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race:
“ ‘First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race[; s]econd, if that showing has been made,the prosecution must offer a race-neutral basis for striking the juror in question[; and t]hird, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.’ ”There are teaching points for the military judge, because it seems the Court based it's decision on a failure of the trial judge to make a good record (and of course that might apply also to the prosecutor). The court affirms a position I've taken in a number of cases that the judge may grant a peremptory challenge upon "a finding that an attorney credibly relied on demeanor in exercising a strike," Slip op. at 6.
SCOTUS blog indicates that:
In a significant new case on the Confrontation Clause, the [U.S. Supreme] Court said it would consider the constitutionality of prosecutors’ offering a crime lab report as evidence in a criminal trial, instead of the live testimony of the expert who prepared the report. (Melendez-Diaz v. Massachusetts, 07-591).This is a significant development, especially in light of C.A.A.F.'s handling of the issue in United States v. Harcrow, __ M.J. ___, No. 07-0135/MC, slip op. at 13(C.A.A.F. Mar. 13, 2008); and the potential effect if any on the decision in United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006).
Docket: 07-591; Case name: Melendez-Diaz v.
Question Presented: Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington [,541 U.S. 36] (2004).
The issue comes up occasionally of the military accused who wants to represent himself - pro se-cute himself.
SCOTUS Blog reminds us that the Supreme Court may give some guidance on the issue of how mentally competent, if at all, must the accused be.
On March 26, the court will hear oral argument in Indiana v. Edwards (07-208)– testing the standard to be used on mental competency when an accused person seeks to act as his own lawyer at trial. The federal government supports the state of Indiana and argues in its brief that a mentally ill defendant may be denied the right of self-representation “if the trial court determines through an appropriately particularized analysis that his conduct of the trial would frustrate important governmental interests.”Just one military example: United States v. Mix, 35 M.J. 283 (C.M.A. 1992)(We hold that appellant was competent to proceed pro se and that the military judge's inquiry and advice were sufficient to ensure a clear and unequivocal waiver by appellant, who functioned very effectively as his own advocate.). In this case,
The military judge directed the convening authority to inquire into appellant's mental responsibility and competence to conduct his own defense. About 1 month later a sanity board consisting of two psychiatrists and a psychologist concluded that "the accused has sufficient mental capacity to understand the nature of the proceedings and to conduct or cooperate intelligently in the defense -- although he may choose not to do so."
CAAF has granted (and specified) issues related to pretrial confinement credit.
No. 07-0826/AR.
WHETHER, PURSUANT TO 18 U.S.C. § 3585, APPELLANT IS ENTITLED TO CREDIT TOWARD THE CONFINEMENT ADJUDGED BY A COURT-MARTIAL FOR CONFINEMENT AT STATE FACILITIES SERVED FOR CHARGES UNRELATED TO HIS COURT-MARTIAL SENTENCE AND NOT CREDITED AGAINST ANOTHER SENTENCE.
and the following issue specified by the Court:
WHETHER, UNDER UNITED STATES v. WILSON, 503
No. 07-0856/AR.
The point: Object to Trial Counsel voir dire that in effect seeks to get the members educated and to try the case in advance at voir dire. Unfortunately defense counsel didn't do that in United States v. Nieto, __ M.J. ___, No. 07-0495/MC (C.A.A.F. Mar. 12, 2008), although I'm not sure the Nieto result wouldn't have been the same.
To steal a base from CAAFLog:
As Chief Judge Effron's majority opinion explains, "Before this Court, Appellant contends that the prosecution improperly sought to obtain from the panel members a commitment to convict Appellant based upon a hypothetical set of facts, that the commitment questions violated his right to be tried by an impartial panel, and that the military judge erred by permitting these questions." Id., slip op. at 10. There was no objection at trial, so the issue was reviewed under a plain error standard.
The majority observed that "[a]lthough this Court has addressed challenges for cause based upon answers provided by prospective members to hypothetical questions during voir dire, we have not heretofore addressed the scope of permissible questioning in this regard." Id., slip op. at 11 (internal citation omitted). CAAF declined to fill that vacuum in the Nieto case, basically punting until a better developed record comes along. CAAF did, however, cite some federal and state case law on the subject, perhaps trying to nudge the issue along a bit by providing some cites for trial-level counsel's use in litigating the issue. See id.If you object, you will get to second base at least.
"[L]ie catchers need to focus on what is being said, and try to avoid being misled by non-verbal behaviour."Is it possible to, and do "vicitms" fake trauma? The answer should be yes they can. That's why malingering is such an important consideration in the diagnosis of PTSD for example. The "symptomology" of PTSD and trauma is readily available to the general public. The APA recognizes that fake claims of PTSD or trauma do and can occur. The article cited below makes the argument that by focusing on body language -- the crocodile tears -- counsel -- and by inference the Members -- are missing the words. And it's the words that help "diagnose" false traumatic events. The authors seem to be arguing one of several points I've argued over the years about word choice. Good interrogators don't just look at the neurolinguistics, they also look at word choice, and what the person says, the paralinguistics.
Porter, et. al., infra.
Children and teenagers do lie. The research supports that statement. Why and how they lie, and for what motives is something we trial (defense) lawyers ponder about all the time. In the traditional court-room dichotomy the prosecutor argues children never lie, they have no motive; the defense argues otherwise.
Here is an item that adds to the mix.
Michael Price, “Liar, liar, neurons fire” in Monitor on Psychology Volume 39, No. 1 January 2008.
A colleague at Deception Blog, has this summary.
Children first begin lying verbally around age 3, the time when language development and the ability to control one’s own mental skills combine to form a child’s theory of mind. Also at this age, children have learned their parents’ rules and the consequences of breaking them. …A child’s initial lies tend to be of the punishment-escaping variety. They’re not yet aware of the moral qualms associated with lying… It’s essentially a logic puzzle to them.
… By age 4, children can reliably tell the difference between harmful lies and little white ones, and they stop lying indiscriminately. But, as any lawyer can tell you, the lies don’t drop out altogether. Instead, children develop lying into a social skill.
The article goes on to describe several recent research studies, including a great experiment by psychologist Victoria Talwar from McGill University which demonstrated how lying sophistication increases with age.
The Navy-Marine Corps Court of Criminal Appeals has published it's opinion in United States v. Morrison , a Naval Academy sexual misconduct case. The case was one of several involving football players. The two issues discussed in the appellate case relate to members panel "stacking" and unlawful command influence.
The two reminders of the law we take from this case are:A court-martial may not be purposefully “stacked” to achieve a desired result and officers, otherwise eligible to serve, may not be excluded from service based solely on their rank. See
[W]e begin our consideration of whether actual UCI existed with a presumption that the CA acted in good faith and applied the Article 25(d) criteria conscientiously.
The U.S. Supreme Court has conference scheduled for 14 March 2008 for the following case relevant to rape and child abuse prosecutions.
Docket: 07-886
Case name:
Issue: Whether, under the Sixth Amendment, a child’s report of sexual abuse to a hospital counselor is “testimonial” and thus subject to cross-examination if the interview serves both therapeutic and investigatory purposes.
SCOTUS blogsite notes the following case scheduled for conference at the U.S. Supreme Court on 14 March 2008.
Docket: 07-591
Case name: Melendez-Diaz v.
Issue: Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington (2004). (Disclosure: Akin Gump is co-counsel for the petitioner.)
(United States v. Webb, __ M.J. ___, No. 07-5003/AF (C.A.A.F. Mar. 3, 2008), is worth the read for two reasons: a fine discussion on a trial counsel's obligation to actually comply with discovery; and for how the defense can use post-trial Article 39(a), UCMJ, sessions to advantage. I have written already about using such a session to help assert a right to speedy post-trial review. In Webb, the defense successfully used the Article 39(a) to get a new trial, based on a prejudicial failure to provide discovery.
Trial Counsel interviewed the "observer" of Webb's golden flow contribution, and learned that the observer had an Article 15 punishment. The TC did nothing else: didn't learn the nature of the offenses, and didn't learn why the observer was still qualified to be in such a trusted position. The day after trial the TC told defense that the observer's Article 15 was for false official statements and larceny. That would be sufficient to XE and try and impeach. Of course that meant that the observer regularly lied on his observer briefing where he failed to disclose a disqualifying Article 15.
In United States v. Smith, NMCCA 200100458 (N-M. Ct. Crim. App. 28 February 2008), appellant was tried 24 March 1999. He was sentenced to a BCD, six months confinement, and reduction to E-1.
The case took a tortured path accumulating 2959 days of post-trial delay.
The court granted relief (Pyhrric) by affirming only the BCD and reduction. Of course the appellant had already served his confinement.
Some general thoughts.
1. On the 90th day after trial, counsel should submit a motion to the military judge. That motion should demand a speedy review, and should request release from confinement pending appeal.
2. When submitting R.C.M. 1105 matters, counsel should also note the delay.
