Currently, a military jury (called a Panel of Members) must have eight members in a general court-martial (12 if it’s a death penalty case) and four in a special court-martial. Article 29. Three-fourths of the members must vote for a finding of guilty. Article 52.

That is the current law in the military, but it is being challenged. The Court of Appeals for the Armed Forces has several cases on the issue of unanimous verdicts, which will be decided this term. If the court decides in favor of unanimous verdicts, then the Government will likely appeal to the U. S. Supreme Court (or vice-versa).

What should the military defense counsel being doing now at trial? One step is easy, but there may be other steps that should be considered.

Step One: file a motion with the trial judge that the members should be instructed that they must have a unanimous vote for any finding of guilty. Most military are already doing this. The military judge will almost certainly deny the motion, but you have put the issue on the record for appeal. Because the voting is a constitutional issue, an Appellant whose case is still under review might benefit from a favorable change in the law while the case is still on appeal.

The Supreme Court has previously held that an appellant might benefit from the change in the law. Griffith v. Kentucky, 479 U.S. 314 (1987). The Court of Appeals for the Armed Forces (CAAF) has followed that rule in, for example, United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008). There is some suggestion that the retroactivity principle need not always apply–this is fact specific and adds uncertainty. Your military appellate defense lawyer is able to help navigate this problem. CAAF has looked at the issue in United States v. St. Blanc, 70 M.J. 424 (C.A.A.F. 2012) in relation to what remedy to apply.

But,

Step Two. It seems to me that there is an earlier point in the trial where the military defense lawyer needs to object to the nonunanimous verdict rule. At the arraignment, the judge advises the accused of their forum rights–officer members, officer-enlisted members, or judge alone. Here the judge tells the accused about the voting requirement. Perhaps, at this stage, the military defense counsel should object and ask the accused to be advised that the voting will be unanimous. The judge will not do that because, again, under current law, she doesn’t have to.

Why Step Two?

Forum choice is always difficult–some cases are usually best tried by a judge alone most others should be a jury (members) trial. What we don’t know is whether a case that might be best by judge alone would be better as a jury (members) trial if a unanimous verdict is required. It’s a combination of numbers and intuition about who the members are. Some of us more experienced military defense counsel are familiar with the old numbers game of how many members to have on the jury.

So, one of the new issues we’ve been raising has been the denial of a proper forum choice based on the judge’s initial forum and voting advice. This becomes important on appeal where the accused has elected trial by judge alone but would have elected members if the voting had to be unanimous for guilt. It’s rather simple–it might be easier to convince one member to vote not guilty than three.

At Cave & Freeburg, LLP, we try to be creative and thoughtful about your defense and consider all options that might work in your favor.

Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.

More information, including the petition at SCOTUSBlog here.

Yes, back in 1976 I got my Bluebook and throughout the three years of law school, it was a regular reference. Ah, but it continues to be a daily tool–for motions, briefs, and such. I fear one day I’ll Bluebook a conversation with a relative or friend in everyday conversation.

One of the common questions is how best to quote, be it an appellate decision or a law journal. Jack Metzler proposes a solution, In Cleaning Up Quotations, to be published in 18 J. APP. PRAC. & PROCESS.

So it often turns out that the best quotation for a proposition is one in which a judge has quoted some other judge, and there’s a good chance that judge was quoting yet another.The Bluebook dictates how to cite the original source of quoted material, how to indicate that the quotation contains a quotation, and how to show any alterations to the immediate source or the original source. But once the quotation contains a quotation, the Bluebook rules often mean that good quotes quickly acquire a significant amount of citation baggage that makes it difficult to use them without significantly distracting from the author’s point or increasing the author’s work for little substantive gain.

His solution is quite elegant and I hope the Bluebook soon includes his suggestion.

While looking into the article I found The Journal of Appellate Practice & Process is available for a $25.00 a year subscription. It is advertised as “a professionally edited publication that provides a forum for creative thought and dialogue about the operation of appellate courts and their influence on the development of the law.” (Note, I get nothing for telling you this.)

When last we wrote about the statistics of relists a little over a year ago, it was to report on what was then a new trend: the court’s practice of routinely relisting petitions that are under serious consideration for review at second or subsequent conferences prior to entering orders granting or denying certiorari. The practice is by now an accepted feature of the certiorari process, and at least one relist is generally viewed as a necessary step on the way to a grant of further review. Here, we offer an update on the statistics of relists. Focusing on October Term 2015, we highlight some emerging trends in what appears to be an evolving practice.

Regrettably, on 3 October 2016 the court declined to take Captain Sullivan’s petition.

The Army is “reporting” about 60% of cases for last year were sexual assault/120 cases. We have not been able to gain similar “information” from the Air Force or Department of the Navy. Anyone know?

There are two questions presented.

(1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and (2) whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.

The first question is of more interest than the second. Military practice on motions waivable or otherwise is different from federal courts. Essentially there is a circuit split where two circuits hold the government’s feet to the fire to prove additional “elements” instructed on, but not required by statute, with two circuits reviewing legal sufficiency based only on the statutory elements regardless of the court’s instructions.

The ever helpful SCOTUSBlog has previously commented on the case.

• Argument analysis: Few friendly faces in the crowd for computer fraud defendant (Rory Little).

[W]hen the jury was ultimately instructed, the judge mistakenly told them that the statute “makes it a crime for a person to intentionally access a protected computer without authorization and” – not “or,” as the statute and the government’s proffered instructions actually said – “exceed authorization.” The jury convict[ed]. [A]fter a motion for new trial was denied [it was] notice[d] the “and” versus “or” error in the instructions. [The Apppellant of course then sought to argue for dismissal.] The trial court rejected that belated argument, as did the court of appeals, ruling that the statute and the indictment express all the elements the government must prove, and that the mistaken injection of an additional element was both irrelevant and harmless here. Indeed, it redounded to Musacchio’s benefit at trial, by adding to the government’s burden of proof (as Justice Ruth Bader Ginsburg also noted during yesterday’s oral argument).

Mr. Little impliedly predicts Mussachio loses because he does “not perceive any support for Musacchio’s arguments in the transcript of oral argument. Rather, there were repeated expressions of non-understanding or outright rejection.”

• Argument preview: An unusual two-issue case of federal computer crime (Rory Little)
• Criminal law grants for the October Term 2015 (Rory Little)
• Petition of the day (Maureen Johnston)

In United States v. Quick:

The underlying issue is whether Article 66(d), UCMJ, authorizes the CCAs to order sentence-only rehearings. The government argues that the CCAs do not have that authority and asks that we overrule this court’s decision in United States v. Miller, 370 C.M.A. 296, 27 C.M.R. 10 (1956), in which we specifically recognized the authority of the CCAs to order sentence-only rehearings. The government asserts that Miller was wrongly decided in light of Jackson v. Taylor, 353 U.S. 569 (1957).

As the gubmint’s oft-stated “it’s too hard” argument CAAF said:

As noted in Miller, sending a case to CCAs for a sentenceonly rehearing is somewhat cumbersome, as a new court must be assembled and informed of the facts. 10 C.M.A. at 299, 27 C.M.R. at 373. However, a process that is cumbersome does not equate to a process that is unworkable. The very fact that the CCAs have been ordering sentence-only rehearings for over sixty years demonstrates the workability of the process.

Along with deciding the issue, CAAF made a couple of comments interesting to those students of CAAF’s stare decisis belief.

• We do not believe that Miller was so poorly reasoned that it should be reversed on that basis alone, particularly when it has been accepted by and relied upon by both the legislative and executive branches of government in the intervening years.
• Legislative history does not support overruling.
• A long supportive history following the case sought to be overruled and thus an argument for consistency. But, one asks, what about Fosler?
• The Supreme Court has held that stare decisis “is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991); see also Tualla, 52 M.J. at 231. As noted, the Miller rule has been in effect for over sixty years and during that time has become accepted procedure in the military justice system. It has provided a predictable and consistent appellate remedy for both litigants and the lower courts to follow. (Fosler anyone?)
• (Note from the two dissenting judges) The fundamental error in the court’s analysis was in according the policy of stare decisis an aspect of flexibility that it does not have. A precedent-making decision may be overruled by the court that made it or by a court of a higher rank. That discretion, however, does not reside in a court of a lower rank. United States v. Allbery, 44 M.J. 226, 228 (C.A.A.F. 1996)

The Supremes anyone?

Key Evidence Issues During 2013

1. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Kansas v. Cheever: Allowing The Government To “Follow” Where The Defense Leads On Defense Expert Mental State Evidence

2. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Salinas v. Texas: Splintered Ruling Fails To Provide Guidance On Prearrest Contacts With Law Enforcement

3. Supreme Court Watch: Fourth Amendment (Search and Seizure Clause): Maryland v. King: Divided Court Upholds DNA Sample Collection From Arrestees For A “Serious” Crime Without A Search Warrant

4. Supreme Court Watch: Fifth Amendment (Due Process Clause): Smith v. United States: Unanimous Conspiracy Withdrawal Ruling

5. Certification (a civil case).

6. Supreme Court Watch: Sixth Amendment (Right to Present a Defense) (Confrontation Clause); FRE 608(b) (Specific Instances of Conduct): Nevada v. Jackson: No Constitutional Right To Present Extrinsic Evidence For Impeachment Purposes

7. Addressing Juror Internet Research During Trials

8. Electronic And Internet Evidence Issues

9. FRE 706: Encouraging The Use And Consideration Of Court-Appointed Experts

10. Rule Amendments: FRE 803(10) (Absence of a Public Record)

Each of the above issues had something of value and interest to military justice practitioners. For example:

In Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013), the Supreme Court held unanimously that the burden of proof to establish withdrawal from a conspiracy, is on the accused, and the prosecution has no burden to disprove withdrawal under the Fifth Amendment Due Process Clause.

And now, “we look forward at some key evidence issues that may arise in 2014.”

Key Evidence Issues for 2014

1. Supreme Court Watch: Sixth Amendment (Confrontation Clause): Continuing Confusion On Expert Testimony Following Williams v. Illinois

2. Circuit Split: Sixth Amendment (Confrontation Clause): Division under the Confrontation Clause on “Language Conduit” Theory for Interpreters

3. Supreme Court Watch: Is An Analytical Shift Coming for Fourth Amendment Analysis on the Search and Seizure of Digital Evidence?

4. Open Issue (civil case):

5. Circuit Splits: Challenging A Verdict Based On Claims of Juror Racial Bias During Deliberations Or Claims of Juror Dishonesty During Voir Dire

6. Legislation: Will Congress Enact a New Media Shield Privilege?

7. Rule Amendment: Sixth Amendment (Confrontation Clause): More Notice and Demand Rules?

8. Rule Amendment: FRE 801(d)(1)(B): Encouraging the Use and Consideration Of Court-Appointed Experts

9. Rule Amendment: FRE 803(6) (Business Records), FRE 803(7) (Absence of Business Records), and FRE 803(8) (Public Records)

10. Considering the Role of Cameras in the Courtroom

Professor Friedman, a frequent litigator on confrontation issues hasn’t blogged recently, but here is one related to post-Williams issues.

[T]he second petition for certiorari in Turner v. United States, No. 13-127, one of the cases that was GVRed (grant, vacate, remand) in light of Williams v. Illinois, came before the Supreme Court’s conference on Friday but the Court did not take any action. (The case was originally distributed for the conference of September 30, but before hen the Court requested a response form the Government, so the case was relisted.) It may well be that the Court realizes that it needs to do something in light of the confusion created by the fractured decision in Williams, but it has not yet decided which case to take. There are several others pending. The Court has already requested a response from the State in Brewington v. North Carolina, No. 13-504, filed in October, and the State’s response is not due until February 3. Derr v. Maryland, No. 13-637, was filed on Nov. 20, Ortiz-Zape v. North Carolina, No. 13-633, on Nov. 21, and Cooper v. Maryland, No. 13-644, on Nov. 22.

(Note: I have one case pending at a CCA on issue 5 – impeaching a verdict.)

COMMEMORATING THE 100TH ANNIVERSARY OF FARRAND’S RECORDS OF THE FEDERAL CONVENTION

edition. Volume 80, No. 5, includes:

A Dialogue on Statutory and Constitutional Interpretation The Honorable Antonin Scalia & John F. Manning 80 GEO. WASH. L. REV. 1610 (2012)

and

A Dialogue with Federal Judges on the Role of History in Interpretation Amanda L. Tyler, Moderator, The Honorable Frank H. Easterbrook, The Honorable Brett M. Kavanaugh, The Honorable Charles F. Lettow, The Honorable Reena Raggi, The Honorable Jeffrey S. Sutton & The Honorable Diane P. Wood 80 GEO. WASH. L. REV. 1889 (2012)

There are a couple of passages that I would amend if I could, in which I refer to the “primary purpose” test and appear to assume that it governs a case like this. I believe a “reasonable anticipation” test is far preferable, and I am hoping that the “primary purpose” test will eventually recede, perhaps first by being confined to interrogations. The recent decision of the Michigan Supreme Court in People v. Fackelman,, which I expect to discuss in a post in the very near future, raises my hopes that this may turn out to be true.

Issue two is:

2. Should the Court resolve a conflict in the Circuits and clarify whether its Confrontation Clause precedents, Olden v. Kentucky, 488 U.S. 227 (1988), Delaware v. Van Arsdall, 475 U.S. 673 (1986), and Davis v. Alaska, 415 U.So 308 (1974), permit a trial court to preclude cross-examination into the bias of a key witness on the ground that the trial court has allowed some cross-examination into bias.

Other cases to follow:

Williams v. Illinois.

Missouri v. Frye, Lafler v. Cooper. Each of these cases deals with IAC at the time of pretrial negotiations, as does Premo v. Moore, which was decided 19 January 2011.

In replacing Justice John Paul Stevens, Obama would also be breaking with tradition. Every other member of the court is a former federal appeals court judge, and Kagan has never served in the judiciary. The last time a non-judge was appointed was 1972, when President Richard M. Nixon nominated William H. Rehnquist and Lewis Powell in the same year.

The Supreme Court Database.

The Supreme Court Database is the definitive source for researchers, students, journalists, and citizens interested in the U.S. Supreme Court. The Database contains over two hundred pieces of information about each case decided by the Court between the 1953 and 2008 terms. Examples include the identity of the court whose decision the Supreme Court reviewed, the parties to the suit, the legal provisions considered in the case, and the votes of the Justices.

Florida v. Powell (08-1175) — police duty to expand “Miranda warnings” before questioning suspect.

Weds., Sept. 16 at 4 p.m.: The American Bar Association will host “On the Docket: The Legal and Media Worlds Look at the Supreme Court 2009 Term” at the Newseum. Tom Goldstein will be a panelist. Click here for more information and registration details.

Thurs., Sept. 17 at 10:30 a.m.: The Cato Institute will host a Constitution Day symposium, “The Supreme Court: Past and Prologue—A Look at the October 2008 and October 2009 Terms.” Click here for more information and registration details.

Friday, Sept. 18 at 9 a.m.: The Yale Law School Supreme Court Advocacy Clinic and the Yale Law Journal Online will host a half-day conference, “Important Questions of Federal Law”: Assessing the Supreme Court’s Case Selection Process,” at the National Press Club in Washington, D.C. The conference will consider the nature and causes of changes in the Supreme Court’s docket in recent years, as well as suggestions for reform of the certiorari process; Lyle Denniston will speak on the first panel. Click here for more information and registration details.

Thurs., Sept. 24 at 12 p.m.: The American Constitution Society will host a panel discussion moderated by Tom Goldstein at the National Press Club where a diverse group of experts will offer their insights on the Supreme Court Term that begins October 5. Click here for more information and registration details.

Mon., Sept. 28, at 6:30 p.m.: The National Constitution Center will hold a discussion about the changing court and the major cases already awaiting its attention when it reassembles on the first Monday in October. Lyle Denniston will be a panelist. Admission is $9 for members, $15 for non-members, and $7 for students and teachers. Reservations are required and can be made by calling 215.409.6700 or clicking here.

Check the Maryland v. Shatzer SCOTUSwiki page throughout the summer for additional updates.

Argument Preview

The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” Miranda protects this right in the context of custodial interrogation by requiring the police to inform suspects of their right to counsel. If the right to counsel is asserted, Edwards v. Arizona mandates that the police cease all questioning until counsel is present or the suspect voluntarily initiates further conversation. In Maryland v. Shatzer, No. 08-680, the Court will consider whether Edwards continues to prohibit interrogation when nearly three years has lapsed since the right to counsel was asserted and the suspect has remained incarcerated throughout that time for an unrelated crime.

/tip, SCOTUSBlog.

This was a 5 – 4 Decision.

Here is a “news release” by the FLETC legal staff. This is what all U. S. law enforcement personnel currently attending FLETC or who get their alerts is being told about the impact of Arizona v. Gant. All CID/OSI/NCIS/CGIS agents claim to have attended FLETC. So, they are on notice and the “notice” gives you some ideas on investigative and cross-examination questions of the police if your search involves a warrantless search of an auto.

QUOTE:

Yesterday, the Supreme Court decided the case of Arizona v. Gant dealing with the circumstances permitting the search of a vehicle incident to the arrest of an occupant. Below is the FLETC LGD review of the decision and its practical impact on law enforcement.

Case Note – Police may search the passenger compartment of a vehicle incident to arrest of an occupant or recent occupant only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

FACTS: Gant was arrested for driving on a suspended license. Gant was handcuffed and locked in a patrol car before officers searched the passenger compartment of his car and found a firearm and cocaine. In his motion to suppress the evidence, Gant argued that it was not possible for him to access the vehicle to gain control of a weapon or evidence, and therefore the search of his vehicle was not a reasonable “search incident to arrest.”

HELD: Police are authorized to search the passenger compartment of a vehicle incident to arrest of an occupant or recent occupant only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Additionally, officers may search the passenger compartment following the arrest of a recent occupant when it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle.

DISCUSSION:

Prior case law: Chimel, Belton, and Thornton. The Supreme Court first established the search incident to arrest (“SIA”) exception to the Fourth Amendment’s warrant requirement in Chimel v. California, 395 U.S. 752 (1969). Chimel held that police may, incident to arrest, search the arrestee’s “lunging area,” which is defined as the area from within which the arrestee might gain possession of a weapon or destructible evidence. The purposes of this exception are to protect arresting officers and safeguard evidence of the offense that an arrestee might conceal or destroy. The Court was asked to define the scope of vehicle SIA in New York v. Belton, 453 U.S. 454 (1981). In Belton, the Court held that when an SIA of a vehicle is justified, the entire compartment and any containers therein may be searched. In Thornton v. U.S., 541 U.S. 615 (2004), the Court added that an SIA of a vehicle may be justified even if an occupant has gotten out of the vehicle, closed the door, and walked a short distance away before being arrested. The question remaining, however, was whether the Belton and Thornton rules authorized an SIA of the vehicle regardless of the arrestee’s ability to access the passenger compartment following the arrest.

Clarification: arrestee within reaching distance. The majority opinion in Arizona v. Gant has answered that question, holding that prior case law authorizes police to search a vehicle incident to arrest when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. The Court noted that “it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains.” In such a rare case, however, an SIA of the passenger compartment would be reasonable under the Fourth Amendment.

An additional justification: offense-related evidence. Even if the arrestee can no longer access the vehicle’s passenger compartment, the Court held that an SIA will also be permitted “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” In many cases, such as arrests for traffic violations, there will be no reasonable basis to believe that the vehicle contains relevant evidence. In other cases, however, such as arrests for possession of controlled substances, the basis of the arrest will supply an acceptable rationale for searching the arrestee’s passenger compartment and any containers inside.

Other vehicle search exceptions remain available. The Court noted that other established exceptions to the search warrant requirement remain available to safeguard evidence and protect the safety of officers. If an officer has a reasonable suspicion that a passenger or recent occupant of a vehicle – whether arrested or not – is dangerous and may gain access to a weapon, he may frisk the passenger compartment for weapons. (This exception is known as a Terry frisk of the vehicle.) If the officer has probable cause that the vehicle contains evidence of criminal activity, the officer may conduct a thorough search of any area of the vehicle in which the evidence might be found. (This exception is called the “mobile conveyance exception” or the Carroll Doctrine.) Finally, if an officer conducting an arrest reasonably suspects that a dangerous person is hiding in a nearby vehicle, he may conduct a protective sweep of the vehicle by looking in places where such a person might be concealed. Although not specifically mentioned by the Court, and not a criminal search tool, an inventory of a vehicle’s contents following a lawful impound is another exception to the search warrant requirement. This administrative exception, however, may not be used as a pretext for a criminal search. Consent remains a viable option as w ell.

The bottom line. To justify a search incident to arrest of a vehicle’s passenger compartment, an officer must articulate that either (1) the officer was unable to sufficiently restrain the arrestee during the search, so that it was reasonable to believe the arrestee might have been able to access the vehicle, or (2) there was a reasonable basis to believe that evidence of the crime for which the occupant of the vehicle was arrested might be found in the passenger compartment at the time of the search.

APPLICATION TO FIELD OFFICERS AND AGENTS:

Prepare to articulate! The Court noted that “[w]hen asked at the suppression hearing why the search was conducted, [the officer in this case] responded, ‘Because the law says we can do it.’” That answer did not – and will not – meet the government’s burden. While searches of vehicles incident to arrest have been considered “automatic” for 28 years, the holding of Gant states that more is required. Officers must be prepared to articulate facts establishing one of the permitted justifications.

Don’t look for the loophole; it’s already closed. Some may suggest the holding in Gant encourages an unsafe practice of leaving arrestees unsecured in a nearby area to justify a search incident to arrest. Justice Scalia, however, in his concurring opinion in Thornton v. U.S., has already anticipated and answered that argument. He wrote, “if an officer leaves a suspect unrestrained nearby just to manufacture authority to search, one could argue that the search is unreasonable precisely because the dangerous conditions justifying it existed only by virtue of the officer’s failure to follow sensible procedures.”

Unanswered questions:

The Court held that an SIA will also be permitted “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Is this a lower standard than probable cause applicable only to evidence of the crime of arrest?

Can an officer SIA a vehicle when persons other than the already secured arrestee are in the area who might gain access to the vehicle?

Does this ruling, reemphasizing the original Chimel basis for SIA, extend beyond the context of SIA of a vehicle to apply to all SIA of “lunging areas?”