Litigator Libations

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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.  

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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.  

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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.  

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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.

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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.

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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.  

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In today's episode we discuss United States v. Driskell, where the CAAF held that a military judge's dismissal for want of jurisdiction - after the presentation of evidence and findings argument - was essentially an acquittal and therefore no rehearing was authorized under the Double Jeopardy Clause in the United States Constitution.  We also briefly discuss the Hasan and Flores cases, but only very briefly.  We then get to hear from Lt Col Allen Abrams for guidance on effectively getting concessions from witnesses on cross-examination without explicitly requesting the concession.  

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In this episode we discuss the recent C.A.A.F. case of United States v. Ramirez, which comes close to addressing the constitutional due process requirements in voir dire when the accused is charged with a crime of violence, the victim is of a different race than the accused, and the defense requests racial bias questions in voir dire.  The case is a near miss - but interesting nonetheless.  We also hear from Major Heather Bruha on defensive advocacy under the new Rules pertaining to victim impact statements, including specific sentence recommendations, no advance notice as to content, and perhaps more latitude in what amounts to victim impact.  

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In this week's episode we stay very practical and have three presenters!  I start with a discussion about the recent AFCCA case of In re RW, where the court granted a victim's writ based on it finding that the military judge erred by requiring the mental health treatment facility to provide patient records so an attorney outside of the treating organization for a review and removal of privileged materials.  We then hear from Major Ciara Ryan regarding how defenders can prevent trial counsel from misappropriating hard won defense MRE 412 evidence.  Finally, we get an excellent update from Captain John Fredericks on the effort to protect client's from unconstitutional firearm prohibitions.  

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In today's episode we discuss an interesting case from the Army Court of Criminal Appeals that involved successive courts-martial resulting in the ACCA dismissing the subsequent Charge and its Specification because the Convening Authority abused his discretion in not referring all known offenses to the original court-martial.  The subsequent prosecution amounted prosecutorial overreach and, therefore, an unreasonable multiplication of charges.  This gives us a chance to discuss multiplicity & UMC!  We also hear from Major Samantha Golseth who gives excellent advice to defenders; encouraging them to pull the elements of the offenses as early as possible and how to best use them as you prepare for, and put on, your defense at court-martial.