tag:blogger.com,1999:blog-34853720.post5160101425855146355..comments2023-08-24T10:39:23.460-04:00Comments on CAAFlog: Erdmann/Baker on implied bias, or Hello Dolly SodsDwight Sullivanhttp://www.blogger.com/profile/11657981110237418710noreply@blogger.comBlogger14125tag:blogger.com,1999:blog-34853720.post-70838156580368567692008-02-07T18:11:00.000-05:002008-02-07T18:11:00.000-05:00I am about to ask the Clerk of the Court to email ...I am about to ask the Clerk of the Court to email or fax me any decisions and orders for as long as the website is down. I will then upload them to the NIMJ website, www.nimj.org.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-35740114921273248772008-02-06T23:26:00.000-05:002008-02-06T23:26:00.000-05:00Sorry, anonymous, but I don't have access to all o...Sorry, anonymous, but I don't have access to all of the orders that would be in the daily journal. Scuttlebutt has it that the CAAF web site -- along with the Air Force web sites that host the CAAF web site -- will be back up on Friday. We'll see.<BR/><BR/>In the meantime, I'll continue to post any opinions and orders granting review that I can get my hands on on caaflog.com. But I'll be TDY next week, so if the web site remains down, even this imperfect semi-backup won't work.Dwight Sullivanhttps://www.blogger.com/profile/11657981110237418710noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-22912208044522312342008-02-06T21:06:00.000-05:002008-02-06T21:06:00.000-05:00What is Dolly Sods?What is Dolly Sods?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-20281238660910316112008-02-06T14:40:00.000-05:002008-02-06T14:40:00.000-05:00Caaflog,Since the CAAF website has been down for o...Caaflog,<BR/>Since the CAAF website has been down for over a week...do you have the ability to link up a summary of the daily journal for the last 10 days?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-6122278968357328152008-02-06T11:09:00.000-05:002008-02-06T11:09:00.000-05:00I think anonymous #6 identified the most interesti...I think anonymous #6 identified the most interesting part of this opinion; that in some cases, extensive rehabilitation of a court member may result in implied bias. It will be interesting to see just how far away that implied bias "Bridge Too Far" really is.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-39409821923303750182008-02-06T08:32:00.000-05:002008-02-06T08:32:00.000-05:00I concur with John O'C. The dubitante opinion her...I concur with John O'C. The dubitante opinion here appears more like, and probably should have been, a dissent. If this was an "easy trial level call" on the liberal grant mandate, then how did the judge not abuse his discretion? In my opinion, if the government has to rehabilitate a panel member "several times on ten different subjects," that member has got to go. Oh, and when you have to explain an analogy (the reference to Dolly Sods) in a follow-on sentence, maybe you shouldn't use it. I don't think even the all-time Jeopardy champion would have understood that one.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-53447453933161656372008-02-06T08:09:00.000-05:002008-02-06T08:09:00.000-05:00Oh, and re-reading my characteristically typo-ridd...Oh, and re-reading my characteristically typo-ridden post, I should add that one way for Judge baker to get his point across while concurring might have been to stress that this was a really, really close case, sort of firing a shot across the bow without essentially saying that the MJ did the wrong thing but I'm conucrring anyway.John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-25033218012597629732008-02-06T08:07:00.000-05:002008-02-06T08:07:00.000-05:00I've been mulling over Judge Baker's concurrence a...I've been mulling over Judge Baker's concurrence and, on reflection, it troubles me somewhat. Essentially, the opinion says that the MJ didn't abuse his discretion, but that it was obvious that he should have granted the challenge for cause. I think those are two irreconcilable observations from an appellate court. I don't think it can be "you didn't err, but you shopuld have done it the other way."<BR/><BR/>Now, I should note that I am a huge proponent of the notion that a TC should avoid pushing the envelope and creating appellate risk, particularly in cases that are "easy" ones. My feeling on that is that the costs to the system of remands and retials is so high that the TC needs to weigh the need for the evidence (or, in this case, member) in question against the risk that it will bounce the case.<BR/><BR/>And I will also concede that mnay MJs, in my view, go into "protect the record" mode and basically gife the defense whatever they want once they are convinced that the case is an easy conviction (I had one MJ where I would always put my best evidence in first because once he figured out I was going to get a conviction, he would exclude basically anything the defense asked him to exclude, even if the evidecne was pretty clearly admissible).<BR/><BR/>But when the government rehabilitates a member and opposes a challenge for cause, the MJ is supposed to try to get it right. I don't think the appropriate response from an appellate court is that you should have struck the member even if there was no basis for doing so, which seems to be what Judge Baker is saying. Basically, I think Judge Baker should have dissented rather than "reluctantly concurred" if he thought that it was an "easy" call to grant the challenge for cause.John O'Connorhttps://www.blogger.com/profile/08014476389355562158noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-68046081770324395922008-02-06T07:51:00.000-05:002008-02-06T07:51:00.000-05:00Funny -- I see this as an opinion as one I can poi...Funny -- I see this as an opinion as one I can point to that explains that the liberal grant mandate does not equal a de facto peremptory challenge every time a defense challenge is made (and will use to teach young TCs why they must force an MJ to make an implied bias findings for every denied challenge). That being said, I wonder if the result in this case would have been different if an MJ without Judge Rolph's well earned reputation for judicial excellence.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-80152991668474470162008-02-06T06:38:00.000-05:002008-02-06T06:38:00.000-05:00Concerning the Court's website, I would be very su...Concerning the Court's website, I would be very surprised if the current prolonged outage does not prompt the Judges to shift to a different arrangement, notwithstanding the Code's placement of the Court within DoD for administrative purposes. I cannot recall an outage on the D.D.C. ECF system other than for brief weekend maintenance. BZ to CAAFlog for filling the gap by uploading this latest case.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-30416866759452743702008-02-05T23:00:00.000-05:002008-02-05T23:00:00.000-05:00Interesting opinion from Baker. As a defense guy,...Interesting opinion from Baker. As a defense guy, I couldn't agree more.<BR/><BR/>On a side note, has anyone else had trouble accessing CAAF's web site for the past week or so?Robhttps://www.blogger.com/profile/05574849563965757875noreply@blogger.comtag:blogger.com,1999:blog-34853720.post-43741824366731840302008-02-05T22:09:00.001-05:002008-02-05T22:09:00.001-05:00Though a lot of the commentary is rather banal.Though a lot of the commentary is rather banal.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-86937410912470683492008-02-05T22:09:00.000-05:002008-02-05T22:09:00.000-05:00This is the kind of analysis that more often than ...This is the kind of analysis that more often than not separates this blog from others as a cut way above.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-34853720.post-54473985024144281232008-02-05T21:52:00.000-05:002008-02-05T21:52:00.000-05:00You learn something new everyday...today it was Do...You learn something new everyday...today it was Dolly sods and dubitante. That is actually two things so tomorrow I will place my head on my desk and rest.Anonymousnoreply@blogger.com