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The life of a military appellate counsel -- sitting in a room reading records of trial day after day -- may not sound riveting. But fortunately, records of trial often provide entertainment. My colleague Capt Mike Burnatt found this amusing exchange in an Air Force ROT:
(After Trial counsel's findings witness testified):
MJ: Trial counsel, you may proceed.
TC: Argument, sir.
MJ: Well, we're still at evidence now. Does the government rest? Do you have any additional evidence?
TC: We'll go with sentencing evidence.
MJ: We're in findings now. So, you're trying to convince the court that . . .
TC: No, sir, nothing, no further evidence.
MJ: So the government rests?
TC: Yes, sir.
Military justice blogs are to blogs as military music is to music. The views expressed on this blog are offered in the contributors' personal capacity. They do not purport to be speaking for, and their views should not be imputed to, any other organization, agency, or entity.
Military justice research links
- 2008 Military Judges' Benchbook web site
- AFMAN 51-203, Records of Trial (1 Oct 1999)
- AFPD 51-2, Administration of Military Justice (7 Sep 1993)
- Air Force Instruction 51-201, Administration of Military Justice (21 Dec 07)
- Air Force Rules of Professional Conduct
- AR 27-10, Military Justice (16 Nov 2005)
- AR 27-26, Rules of Professional Conduct for Lawyers (1 May 1992)
- COMDTINST M5810.1D, Military Justice Manual (17 Aug 2000)
- Congressional Research Service, Statutory Interpretation: General Principles and Trends (March 30, 2006 ed.)
- Congressional Research Service, The Constitution of the United States of America, Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States (2002) with 2006 supplement
- JAGINST 5803.1C, Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General (9 Nov 04)
- JAGINST 5810.2A, Military Justice Regulations (17 Sep 93)
- JAGMAN, JAGINST 5800.7E (20 Jun 07)
- Law Library Microform Consortium, Military Law Collection
- LOC military law collection
- Manual for Courts-Martial (2008 ed.)
- Manual for Courts-Martial, United States (2005 ed.)
- Manual of the Judge Advocate General (JAGMAN), JAGINST 5800.7E (20 Jun 2007)
- Military Justice, Army Regulation 27-10 (16 Nov 2005)
- UCMJ (as of 28 Jan 2008)
Links
- ACCA's web site
- AFCCA's web site
- AIr Force Judge Advocate General's School's web site
- Air Force Law Review
- Army Lawyer
- Army Trial Judiciary's docket
- CAAF's web site
- CAAFlog.com
- CGCCA's web site
- Coast Guard trial and appellate dockets
- Court-Martial Trial Practice blog
- JAA American Inn of Court's web site
- JAA's web site
- JAG LAW Blog
- JAG Magazine [Navy]
- Journal of Military and Veteran Law
- Military Law Review
- Naval Law Review
- NIMJ's web site
- NJS's web site
- NMCCA's web site
- SCOTUSblog (aka, the greatest blog on the planet)
- Supreme Court's web site
- The Reporter [Air Force]
- This Court-Martial Sentences You To . . . [blog]
- TJAGLCS's web site
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Posts
13 comments:
Sadly, I see this sort of colloguy regularly. It seems many trial counsel have little or no experience these days.
I see the bigger issue as DC have less experience. I an excuse the government from being poorly represented but not the accused.
As caaflog has pointed out, too many law schools, too many lawyers. This isn't an experience problem - go down to your county courthouse and you see the same thing - some people just have no business in the courtroom.
My experience, though ten years old, was that there were a lot of trial counsel and trial defense counsel who were geared toward standing up and arguing facts to the judge and jury, but who didn't really understand the law and didn't really follow developments in the case law. I think that is part of the reason why I saw so little motions practice.
One thing I didn't think NJS covered all that well was the structure of the court-martial system and how the various written authorities (UCMJ, MCM, JAGMAN) related to each other. Having a good sense of legal structure makes many answers to questions sort of intuitive, and I think there was not enough effort in imbuing that strucutral understanding in judge advocates.
And, folks, trial counsel and defense counsel are taken from the same pool of JAGs, as are appellaet government counsel and appellate defense counsel. So it's not really all that helpful (or true) to refer to one side or the other as mouth breathers, mongoloids, etc. The strengths and weaknesses in military counsel basically go across the aisle because both sides are drawn from the same pool of talent.
I see this type of think in Marine courtrooms all the time, not so much in Navy courtrooms.
I use a little cheat sheet for evidence still. Somethimes you just get ahead of yourself.
I see overweight and out-of-shape servicemembers in Navy courtrooms all the time, not so much in Marine courtrooms.
I agree with O'Connor - I frequently do CLE's for "young" military defense counsel, who are amazed to learn, that they can justifiably ignore a RCM, if it conflicts with a statute or constitutional principle.
Case in point, RCM 701(b)(2)'s requirement to give notice of "innocent ingestion." Aside from flying in the face of both the Fifth Amendment and Article 31, most are astounded to find out that such a notice is "an admission" by counsel of an underlying element [use], and raises even thornier ethical issues.
I think it goes beyond Bill's comments on experience - there seems to be a lack of "cerebration" in preparing your case, whether it's the prosecution or the defense. E.g., last week, an Army Trial Counsel argued - in response to a double jeopardy motion, that Watada did not apply because there had been no "mistrial" in our case - just the Convening Authority ordering a rehearing over Defense objection - not because of any structural error, but because there was no verbatim record due to the Court Reporter's gross negligence, and the SJA really wanted a Dismissal in the case.
Dew Process,
Since it's the dc, and not the accused, who notifies the government of an innocent ingestion defense under 701, it is not an admission, nor does it violate the 5th Amendment or Article 31.
Anon 0754:
Why do you conclude that an innocent ingestion notice wouldn't be an admission? I haven't researched it, but the DC is the accused's agent, so it seems that the DC is someone who is legally able to make admissions on the accused's behalf.
The Marine has never been considered an abstact intellectual. One doesn't need brain power at TBS.
JOC,
The notice under 701 would say that the defense intends to utilize an innocent ingestion defense, and would list the relevant facts about that defense. It does not include an affirmative statement saying this is what happened. How is that an admission? How would it be introduced to the members? Under what possible circumstances could that even be relevant? Does the fact that an accused/d.c. demonstrated an intent to use an innocent ingestion defense make it more likely that the accused knowingly used drugs?
-Anon 0754
Anon 12:53 and Presley O'Bannon have hit on exactly what the lawyers fron the Navy and the USMC strive for. The Navy: not to sound stupid in court; The USMC: not to look fat, not caring whether sounding stupid or not.
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