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The other four are: (1) a UCI issue in an Army case, United States v. Reed, __ M.J. ___ No. 07-0114/AR (C.A.A.F. June 15, 2007) (I really can't tell you a lot more than that; the issue isn't very enlightening and I can't find the opinion below); (2) another case construing Crawford v. Washington, this time whether two Virginia lab reports were testimonial hearsay, United States v. Harcrow, __ M.J. ___, No. 07-0135/MC (C.A.A.F. June 15, 2007) (NMCCA's unpublished decision is here); (3) an Air Force case asking the very informative question: WHETHER THE MILITARY JUDGE ERRED IN FAILING TO GRANT THE DEFENSE MOTION TO SUPPRESS THE RESULTS OF THE SEARCH OF APPELLANT'S PERSONAL COMPUTER IN LIGHT OF APPELLANT'S REVOCATION OF CONSENT, HIS SUBSEQUENT ACQUIESCENCE TO PRESSURE BY LAW ENFORCEMENT, AND THE INAPPLICABILITY OF THE INEVITABLE DISCOVERY DOCTRINE TO THE FACTS. SEE GEORGIA v. RANDOLPH, 547 U.S. 103 (2006), seeking reversal of an unpublished Judge Mathews the Great decision, United States v. Wallace, __ M.J. ___, No. 07-0194/AF (C.A.A.F. June 15, 2007) (JMTG's opinion for AFCCA is here); and (4) an Army case presenting these two unlikely issues:
WHETHER SENDING, VIA A CHAT SESSION, A HYPERLINK TO A YAHOO! BRIEFCASE CONTAINING IMAGES OF CHILD PORNOGRAPHY CONSTITUTES KNOWINGLY AND WRONGFULLY DISTRIBUTING CHILD PORNOGRAPHY IN INTERSTATE COMMERCE THROUGH THE INTERNET, IN VIOLATION OF 18 U.S.C. SECTION 2252A(a)(1) OR CLAUSE 1 OR 2 OF ARTICLE 134, UCMJ.
WHETHER UTILIZING A PUBLIC COMPUTER TO VIEW IMAGES OF CHILD PORNOGRAPHY CONTAINED IN A YAHOO! BRIEFCASE, AND ACCESSED VIA A HYPERLINK, SUFFICIENTLY SUPPORTS A CONVICTION FOR KNOWINGLY AND WRONGFULLY POSSESSING ELECTRONIC IMAGES OF CHILD PORNOGRAPHY IN VIOLATION OF CLAUSE 1 OR 2 OF ARTICLE 134, UCMJ.
United States v. Navrestad, __ M.J. ___, No. 07-0199/AR (C.A.A.F. June 14, 2007).
So CAAF may actually have something to do in October.
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10 comments:
I'm glad to see the CAAF will review Harcrow. It seems to me that the service court disregarded CAAF's opinion in Magyari. Specifically, in Magyari, the CAAF stated that "laboratory results or other types of routine records may become testimonial where a defendant is already under investigation, and where the testing is initiated by the prosecution to discover incriminating evidence." The evidence at issue in Harcrow was seized in his house and sent off to be tested. This is a great case for the appellate defense folks.
Not really a great case when THERE WAS NO OBJECTION TO THE LAB REPORTS AT TRIAL. Hard to find plain error when the error is neither plain nor obvious.
Anonymous appears to be schizophrenic. Is it a great case or isn't it? Does the second of anonymous' personalities mean to suggest that there can never be plain error "when THERE WAS NO OBJECTION TO THE LAB REPORTS AT TRIAL?" Can the C.A.A.F. do nothing to resolve a plain and obvious violation of Crawford v. Washington and the Court's interpretation of that decision? Perhaps not. The rights of servicemembers rest squarely on the shoulders of unsupervised fourth-year law students and their ability to preserve error for appellate review.
Is there anything plain or obvious about Crawford v. Washington?
The justices couldn't even define "testimonial."
In any event, Harcrow was represented by a seasoned civilian defense attorney with over 30 years of trial experience.
Yes. And I don't think that is really fair to say that the Court did not define testimonial hearsay in Crawford. In fact, the C.A.A.F. has adopted the various formulations of testimonial hearsay offered in Crawford and endorsed in Davis v. Washington and Hammon v. Indiana.
If you mean to suggest that a seasoned trial attorney with thirty years of experience would not fail to make a Crawford v. Washington motion at a court-martial that was held on July 16, 2002, nearly two years before Crawford was decided, and that therefore they could not possibly be a Crawford violation, then I would agree that this case is all but lost.
I actually agree with Guert's first comment (imagine that). My experience, though now dated, was that trial level litigators (both TC and DC) gave little thought to the impact of appellate review on their cases. As a result, DC tended not to raise pretrial motions that could preserve issues for appeal, and often would fail to preserve an objection at trial once it was clear that the MJ wasn't going to sustain it.
For their part, TCs too often pushed the envelope in trying to get evidence or argument in that was questionable at best. Because of the expeditionary nature of the armed forces, retrials are particularly burdensome, and I think TCs sometimes showed little appreciation of that fact.
All of this probably flows to some degree from the military's practice of putting junior lawyers in trial billets and transitioning them to SJAs or judges once they had experience.
And young, inexperienced public defenders are better than their young, inexperienced military counterparts? Not from what I've seen in civilian court.
In this case, it is doubtful that Clarence Darrow would have objected to the admissibility of a laboratory report. Routine stuff.
Given that, "lab results or other types of routine records may become testimonial where a defendant is already under investigation, and where the testing is initiated by the prosecution to discover incriminating evidence" U.S. v. Magyari, 63 M.J. 123, 127 (C.A.A.F. 2007), why would Mr. Darrow fail to object to the admissibility of the results of testing of drug paraphernalia by the Stafford County Virginia Police Sherriff's Office at the behest of NCIS while Harcrow was patiently waiting in pre-trial confinement?
If it is because he died almost exactly seventy-four years before Crawford was decided, then I agree. Like the trial defense counsel in Harcrow, Mr. Darrow would not have objected to such evidence at the trial of Leopold and Loeb because, until 2004, the admissibility of such documents was indeed "routine stuff." Accordingly, there can be no indictment of the actions of these attorneys under Crawford. But while the vast majority of public documents and business records are not in fact testimonial in nature, the C.A.A.F. will not be the only Court to hold that, after Crawford, documents such as those at issue in Harcrow plainly were.
Anonymous:
Would a public defender have failed to object? Possibly, maybe probably. I wasn't even being particularly critical of the DC in this case, but making the broader observation that the military justice system is different because it has a mandatory appellate review system that is costless to the accused. TCs and DCs should be cognizant of the appellate opportunities military accuseds have when litigating the case below, and I find that much of court-martial practice is focused solely on trying to get the preferred result below rather than also keeping an eye on what might happen upstairs.
I also do think it is a legitimate criticism that the military legal community has an institutional process that pulls litigators out of trial billets just when they are getting experienced at it.
Point well taken.
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