Litigator Libations

In this, the last episode of Season 3, we discuss HVZ v. U.S., where CAAF found that MRE 513(e) gives patient's standing to the extent that they have a right to be heard on a defense motion to compel their mental health records regardless of whether the records are privileged under MRE 513.  We also hear from Lt Col Ghiotto who discusses the rule against hearsay and a couple of exceptions that defenders may want to consider.

In this week's episode we discuss United States v. Grijalva.  In this case the government had an Article 117a (wrongful distribution of intimate visual images) offense but didn't think it could prove a direct and palpable connection to a military mission or the military environment (element 4).  So it dropped that element and re-packaged it as an offense under the general article, Article 134.  The CAAF applies the preemption doctrine but also takes a stroll through the First Amendment -- and both have consequences for defense counsel.  

In today's episode we hear from Lt Col Tony Ghiotto (a.k.a Professor Ghiotto) on the recent Supreme Court Case of Diaz v. United States, which speaks to how close an expert may come to providing an opinion on a ultimate issue (such as whether the accused held a specific intent).  It is an excellent discussion that includes how the law has developed over the years and why.  We also hear, once again, from Major Ciara Ryan, fresh off her successful defense of a client charged with murder.  She tells us how she and her defense team utilized RCM 913(c) to orchestrate a field trip for the entire court to visit the alleged crime scene.  A great episode from two outstanding contributors!

It is Case-A-Palooza!  In this episode we discuss two CAAF cases and then quickly touch on two SCOTUS cases.  United States v. Keago is a CAAF opinion holding that a military judge abused her discretion by failing to grant two defense challenges for cause at voir dire.  It preserves the liberal grant mandate and provides helpful guidance to defenders.  United States v. Metz holds that law enforcement agents did not believe, nor should they have reasonably believed, that Corporal Metz was a suspect in need of rights advisement despite going to his barracks to interview him after discovering a fire they believed was arson, learning that it was likely started with someone who had a key to the building, Metz had a key to the building, Metz was disgruntled and two items in the building that were specifically targeted by fire belonged to his supervisor, and his supervisor told the investigators that if anyone started the fire, it was Corporal Metz...not a suspect!  The case also holds that Corporal Metz's consent to search his room was not the fruit of his illegal apprehension occasioned immediately prior to the consent.  We then turn to SCOTUS where Smith holds that a testifying expert who parrots the facts and conclusions proffered by a non-testifying expert as the basis for his opinion, amounts to hearsay and if the statements are testimonial they also violate the Confrontation Clause.  In Rahimi, the Court upholds a federal law prohibiting the possession of firearms by a person subject to a domestic violence protective order as consistent with the history and tradition of firearm regulation in the United States.

In this (lengthy) episode we discuss the recent CAAF case of United States v. Cole, where the CAAF set aside the sentence because it was far from clear whether the military judge was punishing A1C Cole for the crime he pled guilty to, or the more serious crime that the military judge described.  We also discuss a second case that also busts a guilty plea.  In United States v. Moore, the NMCCA set aside findings and sentence based on evidence the government put on in sentencing that cast significant doubt as to the providence of Sergeant Moore's plea of guilty.  Finally, we hear from Lt Col Allen Abrams who discusses the impacts (or lack thereof) of Article 58a, UCMJ, which allows for automatic reduction to E-1 upon imposition of a sentence that includes confinement, hard labor without confinement, or a punitive discharge.  As a matter of policy, the Air Force has never opted in to Article 58a but recent changes to the wording of the statute has muddied the water a bit.  Allen provides some arguments for defense counsel wrestling with the issue.  

In this week's episode we discuss United States v. Wilson, where the CAAF reviews the admission of MRE 404(b) evidence for an abuse of discretion.  The opinion provides helpful guidance and helpful language for defenders in defending off the admission of inappropriate propensity evidence.  We also hear from Major Ciara Ryan who discusses immunity and what to do when a witness invokes their rights against self-incrimination while on the stand.  

In this episode we discuss the recent case of United States v. Rocha, where the CAAF reversed the Air Force Court of Criminal Appeals, which found that the enumerated Article 134 offense of Indecent Conduct, did not put Airman Rocha on notice that masturbating with a sex doll with childlike characteristics was a crime.  CAAF says it did.  We then hear from Lt Col Allen Abrams who provides a six step analysis on how defenders can analyze and attack the specification drafted by the government.  

In today's episode we discuss U.S. v. McNulty, which involved a claim of IAC based on defense counsel not seeking an R.C.M. 706 inquiry, A.K.A., a sanity board.  The claim fails but the case gives us an opportunity to discuss the issues of lack of mental responsibility and mental capacity.  We also discuss an AFCCA case (U.S. v. Csiti), which demonstrates the further degradation of appellate rights under the changes to Article 66, which now limits the scope of the CCA's factual sufficiency review.  Finally, we hear from Major Frederick Johnson on things you need to know when representing clients who may remain on active duty pending the appellate resolution of their case.

The Judge Advocate General for the Navy certified two questions to the Court of Appeals for the Armed Forces following the N-MCCA's denial of a victim's petition for a writ of mandamus.  The CAAF doesn't answer either question, but makes it clear that a victim does not have standing to challenge how, or whether, her alleged assailant is prosecuted.  We also hear from Major Crouch with thoughts on starting strong in your sentencing arguments.

In this episode we discuss the CAAF case of United States v. Palik, which involves an claim of ineffective assistance of counsel based on a failure to raise an R.C.M. 914 (Jencks Act) motion in hopes of forcing the trial court to disregard the testimony of the complaining witness.  The case gives us an opportunity to discuss both IAC and R.C.M. 914.  We also hear from Major Ciara Ryan on the issue of hearsay and, more specifically, evidence that is allowed as non-hearsay (e.g., effect on listener) and ensuring that evidence doesn't find its way into trial counsel's arguments.