Monday, October 23, 2006

Challenging arguments

The CAAFeteria will be serving some interesting dishes on Tuesday. The entree is United States v. Terry, which presents one of the most interesting factual scenarios in a members challenge case ever. (If you have forgotten, see the 3 October table setting contest blog post.) Then comes a half-portion second helping of members challenges in United States v. Briggs, docketed for 15 minutes per side. For a tasty dessert, there is United States v. Cossio, a speedy trial case in which the military judge kicked the case only to be overturned by the Air Force Court. CAAF will now settle the matter.

It doesn't sound like there's a single serving of meatloaf on the menu. Bon appetite!

(By the way, here's something weird. The spellchecker on blogger.com, on which these posts are composed, doesn't recognize the word "blog." Then again, the spellchecker also doesn't recognize the word "spellchecker." I'm not making this up.)

--Dwight Sullivan
Posted by Dwight Sullivan at 9:27 PM

3 comments:

Jason Grover said...
This comment has been removed by a blog administrator.
Tue Oct 24, 01:48:00 AM EDT
Jason Grover said...

Speaking of CAAF arguments recently, anybody listen to Rankin? Once again, the government took the bizarre position that business records were not testimonial by their nature. When pressed on this point, government counsel wouldn't say it should be a per se rule (an argument lost last term in Magyari). But again and again the government counsel would say things like "business records by their very nature are non-testimonial."

But the two most amusing lines go to the Chief Judge and the appellate defense counsel. The Chief Judge, while questioning the government, made a statement along the lines of, "sometimes this Court faces large policy issues and likes to make board statements to provide guidance on reoccurring issues, what sort of guidance should we give in this case?" That quote is from memory, not exact at all, but that was the sense of it. This strikes me as ironic in the extreme, as this very Court had the Rankin issue before it in United States v. Taylor, 61 M.J. 157 (2005) and carefully ducked the Crawford v. Washington question. In fact, I believe the Court went so far as to publish the only decision in any federal circuit overturning a case on the best evidence rule as an alternative to addressing the Crawford issue.

But appellate defense counsel takes the award for good lines. On rebuttal, when discussing where in the record was a link between the trial counsel and the administrative personnel, the appellate defense counsel started to cite examples in the record and then said, "I won't waste my rebuttal time going through all the examples."

Tue Oct 24, 08:35:00 AM EDT
Dwight Sullivan said...

What a wonderful example of the benefits of posting the argument tapes on line. The Super Muppet of Appellate Advocacy is stationed IN ITALY -- where he was able to listen to a CAAF argument. BZ to CAAF for making its argument audio avaibable to anyone with a web connection!

Tue Oct 24, 09:47:00 PM EDT

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