Friday, March 13, 2009

Next week in military justice

In Great Santini fashion, I'll be starting a family vacation at a ridiculously early hour tomorrow. My blogging volume will be greatly reduced over the next week. So I'm getting a jump on Sunday with a special "Next week in military justice."

Next week at the Supreme Court: The SCOTUS military justice event of the decade will be the week after next when Denedo is argued on 25 March.

Next week at CAAF: CAAF will hear two oral arguments next week, both on St. Patrick's Day and both in Marine cases. I would speculate that CAAF was trying to ensure that counsel would be wearing green, but the appellate government counsel in the second case is a Navy officer. (A scheduled 16 March oral argument sitting was scratched from the calendar.) The first oral argument will be in United States v. Weston, No. 08-0594/MC, where the granted issues are:


I. WHETHER THE LOWER COURT ERRED IN HOLDING THAT GEORGIA v. RANDOLPH, 547 U.S. 103 (2006), DOES NOT APPLY TO THE CONSENT SEARCH OF APPELLANT'S MARITAL HOME WHERE AGENTS FROM THE MARINE CORPS' CRIMINAL INVESTIGATION DIVISION (CID) FIRST RECEIVED APPELLANT'S UNEQUIVOCAL OBJECTION TO A SEARCH OF HIS MARITAL HOME AND THEN OBTAINED CONSENT FROM APPELLANT'S WIFE, BOTH OF WHOM WERE PHYSICALLY LOCATED IN SEPARATE INTERROGATION ROOMS IN CID'S BUILDING ON MARINE CORPS BASE HAWAII, KANEOHE BAY, HAWAII.

II. WHETHER, ASSUMING ARGUENDO THAT THE SEARCH OF APPELLANT'S MARITAL HOME WAS UNREASONABLE IN LIGHT OF GEORGIA v. RANDOLPH, 547 U.S. 103 (2006), THE LOWER COURT ERRED IN HOLDING THAT THE INEVITABLE DISCOVERY EXCEPTION TO THE EXCLUSIONARY RULE WOULD ALLOW ADMISSION OF THE SEIZED EVIDENCE.
NMCCA's en banc opinion is published at 66 M.J. 544.

The second case is United States v. Paige, No. 08-0805/MC, in which the granted issue is: "WHETHER TRIAL COUNSEL COMMITTED PLAIN ERROR DURING HIS CLOSING ARGUMENT ON THE MERITS WHEN HE COMMENTED THAT THE GOVERNMENT'S EVIDENCE WAS UNCONTRADICTED, THEREBY INDIRECTLY COMMENTING ON APPELLANT'S FAILURE TO TESTIFY AND PRODUCE EVIDENCE IN HIS DEFENSE."

NMCCA's unreported decision in the case is available here.

Next week at the CCAs: ACCA will hear oral argument on St. Patrick's Day in United States v. McLester, No. ARMY 20070415, on this assignment of error: "THE MILITARY JUDGE ERRED IN ADMITTING EVIDENCE OF UNCHARGED MISCONDUCT UNDER MILITARY RULE OF EVIDENCE 404(b) AND THE ADMISSION OF THAT EVIDENCE SEVERELY PREJUDICED APPELLANT BY PREVENTING HIM FROM RECEIVING A FAIR TRIAL."

Also next week, on Wednesday Chief Judge O'Toole of NMCCA will be making a presentation to the JAA American Inn of Court called, "Trial Preparation by Reverse Engineering." Information about the event is available here.

Next week at the court-martial trial level: We understand that the military judge in the Behenna case is expected to hear post-trial oral argument on a Brady violation allegation on Friday.

2 comments:

Cinco de Mustard said...

In the Behenna matter, is the Brady violation considered automatic prosecutorial misconduct? If there is a discovery (Brady) issue, then isn't there also a problem with the prosecutor's closing argument (lack of candor to the tribunal)? If a mistrial declared, then it is at the hands of the prosecutor - thus jeopardy has attached?

Two words: Soup Sandwich

Half-Dozen said...

2 more words:

Goat Rope

If the trial judge allows the verdict to stand - the appellate issues will be obvious, and I imagine the prosecution will find themselves on the stand for at a Dubay hearing.

If I'm defense counsel, I'm going to demand all the "Memos to the File" and "Memos for the Record" created by the prosecution now so there isn't any problems later with any other discoverable information that might now have been created after-the-fact.

If I'm the judge - I'm deeply troubled with the representations by the prosecution already.