As a trial and appellate lawyer, I pay attention to word and phrase choices because of the potential effect on the reader or listener. You may be familiar with the saying, ‘it’s not what you say (write) but what the other person hears (reads).’ The point is that the listener may interpret what you have…
Continue reading ›In this earlier blog, I commented on the pending litigation over unanimous verdicts at courts-martial. As military defense lawyers we continue to support the advice given that the issue should be raised in all courts going forward. The update is that the Court of Appeals for the Armed Forces has decided United States v. Anderson.…
Continue reading ›Two recent decisions of CAAF condone unlawful or bad practices when OSI, CID, NCIS, and CGIS search cellphones; United States v. Shields and United States v. Lattin. As a result, the MCIOs are unlikely to change their unlawful or bad practices. More than sloppy police work gets two passes because the military appellate courts think…
Continue reading ›A person being tried at court-martial may have their case dismissed before the members (jury) reach any findings. One way that can happen is when the military judge declares a mistrial. Your military defense lawyer should know what to do if the same charges are re-referred to a court-martial–the prosecution taking a second attempt to…
Continue reading ›Are military law enforcement investigations complete, thorough, and unbiased? It depends. The MCIO leadership and agents will tell you they are. Our experience over the years both as military defense counsel and military prosecutors is that investigations can be incomplete, with leads not followed, evidence not retrieved, and bias in the reports submitted to prosecutors…
Continue reading ›Here is something from good friend Don Rehkopf as a reminder to defense counsel. 1) For anyone representing a client with Art. 120, offenses that will trigger a Dismissal or DD upon conviction; or 2) Anyone representing a client where there may be a chance of being sentenced to a Dismissal or DD; To avoid…
Continue reading ›Sommers & Bohm, The Voluntariness of Voluntary Consent: Consent Searches and Psychology of Compliance. 128 YALE L. J. 1962 (2019). Consent-based searches are by far the most ubiquitous form of search undertaken by police. A key legal inquiry in these cases is whether consent was granted voluntarily. This Essay suggests that fact finders’ assessments of…
Continue reading ›Here is a link to a few cases of interest that were provided me last week at the 49th VACLE Criminal Law seminar. Virginia is in the Fourth Circuit which, I believe, has a reputation as slightly conservative leaning. United States v. Abdallah, ___ F.3d___ (4th Cir. 18 December 2018). Code 45 Alumni and friend…
Continue reading ›The Army Court of Criminal Appeals will hear oral argument on Wednesday, August 3, 2016, at 10 a.m., in United States v. Ahern, No. 20130822. The court will consider the arguments of counsel on the following two issues. I. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE ALLOWED TRIAL COUNSEL TO ARGUE THAT APPELLANT…
Continue reading ›Can the actions of military prosecutors raise the specter of Unlawful Command Influence? Maybe. That conclusion can at least can be gleaned from the case of United States v. Garcia, decided in 2015 by the Army Court of Criminal Appeals. (United States v. Garcia, No. 20130660, 2015 CCA LEXIS 335 (A. Ct. Crim. App. August…
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