Court-Martial Trial Practice

Child Pornography

2008-05-20T00:34:00.002-04:00

United States v. Williams.

As always, SCOTUSBlog has an excellent summary of today's (19 May 2008), Supreme Court decision in a child pornography case.
They have posted the opinion HERE.
They have posted the various briefs and lower court opinions HERE.

Crawford and Urinalysis Cases

2008-05-17T22:10:00.002-04:00

Crime & Consequences Blog has this item:
Cross-Examining Lab Techs

The Ninth Circuit today issued an interesting, if quirky, opinion on the issue of the right to cross-examine lab technicians in United States v. Perez, No. 07-10289. The issue arose in the context of supervised release revocation, not criminal trial, and the opinion by Judge Carlos Bea cautions, "this is an unusual case with unusual facts and should not be taken out of context. We do not hold that a releasee always has a right to cross-examine the technician who tested a urine sample." In this case, though, she did have that right.

The distinct question of "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)," will be decided next term by the Supreme Court in Melendez-Diaz v. Massachusetts, No. 07-591.

There are two pretrial requests necessary to make and two motions in a urinalysis case.
1. Put in a witness request for everyone at the Lab who had a hand in the accessioning through testing of the clients sample. There are some cases to support such a request.
2. Write a letter to the Lab CO and arrange a date and time to visit to interview everyone who had a hand in the accessioning through testing of the clients sample. Article 46, UCMJ, gives equal opportunity to obtain witnesses, and what better way than to interview those who touched the sample.
3. Litigate the witness request.
4. Litigate if necessary (as I've had to do in the case of Navy Drug Lab Jacksonville), the refusal to allow you to visit and interview the employees who touched your client's sample.

"Diverse Occasions" Pleading

2008-04-23T21:29:00.004-04:00

C.A.A.F. has issued an opinion in United States v. Rodriguez, __ M.J. ___, No. 07-0685/AF (C.A.A.F. Apr. 23, 2008).

BLUF Lessons for counsel:
1. The defense should ask for a Bill of Particulars.
2. The defense and prosecution should craft an instruction that specifies each of the alleged "acts" separately.
3. The military judge should then instruct the members to check against each of the acts it finds proven beyond reasonable doubt.
My view is that clarity is assured by following the above practice. That's what the Rodriguez dissent seems to recommend.
At trial, the accused was found guilty of using marijuana on diverse occasions. The finding was based on three separate incidents. On appeal, the AFCCA found that the evidence was factually insufficient as to two of the incidents. Therefore, AFCCA excepted the "diverse occasions" and then amended the charge so that it reflected one use. (AFCCA reassessed the sentence, incorrectly in my view. They reduced the five months confinement to four.)
Appellant sought reversal based on United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). A C.A.A.F. (4-1) majority found Walters distinguishable. The dissent argued that Walters is dispositive.
Check out CAAFLog for more and improved pithy comments on this case.

More Crawford and Sixth Amendment

2008-04-22T12:02:00.002-04:00

On 22 April 2008, the United States Supreme Court heard oral argument in Giles v. California.
The Question Presented:

In Crawford v. Washington, 541 U.S. 36, 62 (2004), this Court recognized
that the forfeiture by wrongdoing rule “extinguishes confrontation claims on
essentially equitable grounds.” The question presented by this case is:
Does a criminal defendant “forfeit” his or her Sixth Amendment Confrontation
Clause claims upon a mere showing that the defendant has caused the
unavailability of a witness, as some courts have held, or must there also be an
additional showing that the defendant's actions were undertaken for the purpose
of preventing the witness from testifying, as other courts have held?

SCOTUSwiki has the briefs, opinions below, and associated documents HERE.

Remedy for Post-Trial Delay

2008-04-21T11:55:00.004-04:00

The Navy-Marine Corps Court of Criminal Appeals has begun issuing a series of opinions addressing post-trial delay. The court is granting relief in a number of cases. In each case where there is a denial of relief the appellant's position could be enhanced. It is the trial defense counsel who is the one most likely and able to assist the appellant get some relief. The two weakest points in the court denials relate to a failure to seek a "speedy post-trial review" and prejudice. Both points can be established by trial defense counsel and the appellant with proper advice at the time of trial. Here is my protocol that I follow in cases, especially not guilty plea cases, to try and set the client up for post-trial delay relief.

1. After trial -- sit down with the client and explain the post-trial process specific to the case. This is critical because the boilerplate post-trial advice given by the military defense and military judge is just that, generic non-specific advice.
a. Discuss with the client the specific issues of clemency and parole and how they can enhance their chance at parole. This should be an add-on to the advice about R.C.M. 1106-06.
b. Discuss with the client the "post-trial diary." Like the pre-trial diary, the post-trial diary is a chronological log of events that may help get clemency, parole, or appellate relief.
c. Advise the client to keep a specific record of any time after going on appellate leave they feel prejudiced by not having a DD214. The client should immediately bring this to the attention of the trial defense counsel Remember, under United States v. Palenius, 2 M.J. 86 (C.M.A. 1977), you remain trial defense counsel until you are released by the client, released by an appellate court, or replaced by the assigned appellate counsel. This means that for the one, two, or three years before the case is docketed you are still the counsel, despite the PCS or the move to be a prosecutor, etc. This is a point I believe is missed, but is required by Palenius. I would encourage reviewing Palenius as the "bible" of post-trial representational procedure and responsibility.
d. I'm to the point where I think it's advisable to give the client some sort of "advice" letter on the post-trial delay issue.
e. If the client does encounter "prejudice" post-trial, you and the client will have to take aggressive steps to document through letters and affidavits. It's easier to do that when the problem happens, rather than later.

2. On day 90 or 120 (I don't have a preference here) after trial when you haven't received a record of trial you should file a Motion for a Post-Trial Article 39(a), UCMJ, session. There is no question that the military judge retains control of a case where the record of trial is yet to be authenticated, and that the military judge can hold such a session under R.C.M. 1102.
a. The purpose is to ask for post-trial release from post-trial confinement pending appeal, additional credit for post-trial confinement due to delay, and a court ordered date certain to have the record of trial delivered to the military judge.
b. Isn't that a waste of time you ask? In every case I have done this the military judge has given the prosecution a date certain, usually 30 days. In one case the military judge directed production of the record of trial within 30 days AND GAVE SIX MONTHS CREDIT against an eight year sentence to confinement based on the delay. Plus, you specifically address the Navy-Marine courts findings that the appellant ought to have demanded speedy review.
3. If you are not getting any response after four months, then it is time to file a petition for a writ of habeas corpus and mandamus.
But this takes work? Yes it does, but after the first one it becomes much easier. Change the headings, update the law, and it's done.

4. I understand there are cases (usually the married client) where the client is happy with the delay. The client's family continues to get the all important medical benefits. That's a judgment call and should be discussed with the client after trial.

4. The current Navy-Marine court is trying to find a middle ground, following my protocol can help them and ultimately the client.

Death Penalty for Rape of a Child

2008-04-16T16:05:00.007-04:00

The U.S. Supreme Court heard oral argument today in Kennedy v. Louisiana, No. 07-343.
The transcript posted HERE.
SCOTUSwiki has posted the opinions below, the petition, and the briefs HERE.
OYEZ has the opinion in Coker v. Georgia and oral argument HERE.

The Supreme Court has previously held in Coker v. Georgia, 433 U.S. 584 (1977), that the death penalty is cruel and unusual punishment for the rape of an adult where the rapist did not also cause the death of the victim. Louisiana, and several other states have passed legislation imposing the death penalty for the rape of a child under 13. Louisiana has two persons sentenced under this law on death row, one of them being Kennedy. Military practice so far has been not to seek the death penalty for rape unaccompanied by a death, basically adopting Coker as a matter of policy.

Article 120 authorizes a death penalty for rape. In Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), the Supreme Court held that executing a defendant for rape of an adult female would violate the Eighth Amendment. We intimated in Matthews that this same principle would apply to trials by courts-martial, "at least, where there is no purpose unique to the military mission that would be served by allowing the death penalty for this offense." 16 MJ at 380.
United States v. Curtis, 32 M.J. 252, 266 (C.M.A. 1991).

False Official Statements

2008-04-04T09:39:00.004-04:00

C.A.A.F. has issued an opinion in United States v. Day.
The issue relates to whether or not statements to the base medical emergency personnel and to an off-base 911 operator are "official" for Article 107, UCMJ, purposes.
Yes as to base officials, no as to off-base. The Court reasserts an expansive reading of what's punishable under Article 107. As far as the court is concerned, just about anything can be an official statement, they will know it when they see it.

Article 107, UCMJ, and 18 U.S.C. § 1001 are not perfectly congruent. “In fact, this Court has recognized that the scope of Article 107 is more expansive than its civilian counterpart, because ‘the primary purpose of military criminal law —- to maintain morale, good order, and discipline -- has no parallel in civilian criminal law.’” United States v. Teffeau, 58 M.J. 62, 68-69 (C.A.A.F. 2003).

Crawford and the Basis of Expert Testimony

2008-04-03T22:32:00.004-04:00

Crime & Consequences Blog directs us to the following new article,
Julie A. Seaman, Triangulating Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony, 96 GEORGETOWN L. J. 827 (2008). C&C summary:

With respect to prosecution experts who testify in the form of opinions based upon testimonial hearsay statements, the answer is clear: such opinions should not be permitted. They fall squarely (so to speak) within the three corners of the expert testimonial triangle and sit at the convergence of the various lines of trust and distrust of juries, government, and experts. In other contexts, however, the answers are less clear. Where a government expert relies on evidence that is inadmissible, but not testimonial, Crawford and the Confrontation Clause do not apply and thus only two legs of the triangle are implicated. And with respect to a criminal defendant’s offer of expertise that rests on otherwise inadmissible hearsay, or in civil litigation, the expert testimonial triangle offers not concrete answers but rather directions for further exploration.

Child Abuse and Deception.

2008-04-03T22:20:00.003-04:00

How many times has trial counsel in a child sex abuse case (or sexual assault case) advanced the argument that children never lie -- probably every time. Yet, the facts are that children do lie, that they are capable of some very cold and calculating crimes, and they are well able to plot against a parent for any number of reasons. In April 2008 the public was disturbed by this:
Third-Graders Charged in Plot to Kill Teacher
Deception Blog now draws our attention to the following:

Po Bronson, Learning to Lie, New York Magazine, 10 February 2008.

Kids lie early, often, and for all sorts of reasons—to avoid punishment, to bond with friends, to gain a sense of control. But now there’s a singular theory for one way this habit develops: They are just copying their parents.

Competency and Guilty Pleas

2008-03-27T22:36:00.003-04:00

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. United States
Issue: Whether, under the Due Process Clause, a defendant who pleads guilty retains the right to appeal a pre-trial competency determination.

R.C.M. 905 does not list a challenge to mental competence or an R.C.M. 706 finding of competence as a raise or lose motion.

2008-03-27T09:14:00.002-04:00

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. U.S. v. Mark R. CONLIFFE. CCA 20040721. Review granted on the following issue:

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.

Rule of Lenity

2008-03-24T14:11:00.003-04:00

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.

Batson Challenges

2008-03-19T23:06:00.004-04:00

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.
Stay tuned for pithy comments from our colleague at CAAFLog.

The briefs, etc., are here available courtesy of SCOTUS Blog --- HERE.

Laboratory Reports and Crawford challenges

2008-03-17T10:44:00.004-04:00

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. Massachusetts
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).

Opinion below (Appeals Court of Massachusetts)
Petition for certiorari
Brief in opposition
Petitioner’s reply
Amicus brief of Professor Pamela R. Metzger, et al. (in support of the petitioner)
Amicus brief of Professor Richard D. Friedman (in support of the petitioner)

Our worthy colleague at CAAFLog has a discussion of Harcrow, as hard cases making bad law.

The Supreme Court has declined to hear another Confrontation Clause case — Iowa v. Bentley, 07-886 — testing when a report of an interview with a child about a crime may be used as evidence, if the child does not testify at trial. Mentioned earlier "here."

Self-representation at Trial

2008-03-16T10:59:00.003-04:00

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."

Pretrial Confinement Credit

2008-03-14T16:48:00.002-04:00

CAAF has granted (and specified) issues related to pretrial confinement credit.

No. 07-0826/AR. U.S. v. Bennie B. GOGUE. CCA 20050650. Review granted on the following issue raised by the Appellant:

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 U.S. 329 (1992), MILITARY JUDGES LACK THE AUTHORITY TO CALCULATE AND APPLY PRETRIAL CONFINEMENT CREDIT.

No. 07-0856/AR. U.S. v. Dustin A. OWENS. CCA 20070264. Review granted on the following issue specified by the Court:

WHETHER, UNDER 18 U.S.C. § 3585, APPELLANT IS ENTITLED TO CONFINEMENT CREDIT FOR A PERIOD OF INCARCERATION THAT HE SERVED IN A STATE FACILITY FOR A STATE OFFENSE UNRELATED TO THE COURT-MARTIAL.

Trying on the Ritz

2008-03-13T10:39:00.003-04:00

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.

Fake Trauma / Victim Impact Evidence

2008-03-07T11:16:00.004-05:00

"[L]ie catchers need to focus on what is being said, and try to avoid being misled by non-verbal behaviour."
Porter, et. al., infra.

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.

Stephen Porter, Kristine A. Peace, Kelly A. Emmett, You Protest Too Much, Methinks: Investigating the Features of Truthful and Fabricated Reports of Traumatic Experiences. Canadian Journal of Behavioural Science 39(2):79–91 (2007).

Attribution: Deception Blog.

Children, Teenagers, and Lying

2008-03-07T10:40:00.004-05:00

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.

Members Selection & UCI

2008-03-06T15:42:00.002-05:00

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 United States v. Hilow, 32 M.J. 439, 440 (C.M.A. 1991); United States v. Smith, 27 M.J. 242 (C.M.A. 1988); United States v. Crawford, 35 C.M.R. 3, 12 (C.M.A. 1964). Court-packing does not deprive the court-martial of jurisdiction, but is a form of UCI. United States v. Lewis, 46 M.J. 338, 341 (C.A.A.F. 1997).

[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. United States v. Carman, 19 M.J. 932, 936 (A.C.M.R. 1985). The burden of presenting sufficient evidence to raise the issue of actual UCI rests with the appellant. The threshold for raising the issue of UCI at trial is low, but requires more than mere allegation or speculation. United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999)(citations omitted).

SANE & Crawford v. Washiington

2008-03-04T09:28:00.002-05:00

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: Iowa v. Bentley
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.

Opinion below (Supreme Court of Iowa)
Petition for certiorari
Brief in opposition (awaiting from counsel)
Amicus brief of Missouri, et al. (in support of the petitioner)
Amicus brief of the National District Attorney’s Association (in support of the petitioner) (awaiting from counsel)

Attribution: SCOTUSBlog

Lab Reports & Crawford v. Washington

2008-03-04T09:17:00.002-05:00

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. Massachusetts
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.)

Opinion below (Appeals Court of Massachusetts)
Petition for certiorari
Brief in opposition
Petitioner’s reply
Amicus brief of Professor Pamela R. Metzger, et al. (in support of the petitioner)
Amicus brief of Professor Richard D. Friedman (in support of the petitioner)

C.A.A.F. has written on lab reports in connection with a urinalysis case:

United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006) (the Confrontation Clause of the Sixth Amendment states that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him; under the Supreme Court’s ruling in Crawford v. Washington, in order for the prosecution to introduce testimonial out-of-court statements into evidence against an accused, the Confrontation Clause requires that the witness who made the statement be unavailable, and that the accused have had a prior opportunity to cross-examine the witness).

Discovery

2008-03-03T23:59:00.002-05:00

(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.

Post-trial Delay

2008-03-01T01:44:00.002-05:00

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.

Sodomy With a Child -- Mistake

2008-02-26T11:24:00.002-05:00

The Court of Appeals for the Armed Forces has decided United States v. Wilson, __ M.J. ___, No. 06-0870/AR (C.A.A.F. Feb. 25, 2008).

A 3 - 2 majority of the court holds that there is no honest and reasonable mistake of fact defense as to age, in a prosecution for sodomy with a child under 16.

As our colleague at CAAFLog notes, Wilson is a case that's unlikely to draw attention at the U.S. Supreme Court -- it's a guilty plea case. We also agree that the majority is wrong -- if the statute or regulation is ambiguous, the rule of lenity ought to be used.

While CAAF has decided the issue, it is still ethical to raise the issue in a contested case. Cite the arguments of the Wilson dissenters and CAAFLog as jusfication; along with the point that while CAAF appears to have decided the issue, the SCOTUS hasn't.