Comments for CAAFlog http://www.caaflog.com Covering the Military Justice System Fri, 12 Mar 2010 02:23:07 +0000 http://wordpress.org/?v=2.9.1 hourly 1 Comment on New version of Gene Fidell’s CAAF Rules Guide by smartypants http://www.caaflog.com/2010/03/11/new-version-of-gene-fidells-caaf-rules-guide/#comment-12704 smartypants Fri, 12 Mar 2010 02:23:07 +0000 http://www.caaflog.com/?p=5022#comment-12704 "this theme is apparent in [CAAF's] reluctance to invoke the doctrine of waiver..." p. 4. Huh? Are we talking about the same CAAF? “this theme is apparent in [CAAF's] reluctance to invoke the doctrine of waiver…” p. 4.

Huh? Are we talking about the same CAAF?

]]> Comment on Blogging from the CAAF Conference by Gene Fidell http://www.caaflog.com/2010/03/10/blogging-from-the-caaf-conference/#comment-12703 Gene Fidell Fri, 12 Mar 2010 00:13:20 +0000 http://www.caaflog.com/?p=5012#comment-12703 No Man, you left off my heirs and devisees! What are they, chopped liver? No Man, you left off my heirs and devisees! What are they, chopped liver?

]]> Comment on Blogging from the CAAF Conference by Mike "No Man" Navarre http://www.caaflog.com/2010/03/10/blogging-from-the-caaf-conference/#comment-12700 Mike "No Man" Navarre Thu, 11 Mar 2010 23:50:19 +0000 http://www.caaflog.com/?p=5012#comment-12700 Anon 1628: way off my friend. Not allowed to criticize contributors. If you notice the esteemed Mr. Fidell has dropped off our contributor list. Thus, open season on Mr. Fidell, his agents, and assigns--but not his spouse, we still really like her reporting Anon 1628: way off my friend. Not allowed to criticize contributors. If you notice the esteemed Mr. Fidell has dropped off our contributor list. Thus, open season on Mr. Fidell, his agents, and assigns–but not his spouse, we still really like her reporting

]]> Comment on Blogging from the CAAF Conference by Gene Fidell http://www.caaflog.com/2010/03/10/blogging-from-the-caaf-conference/#comment-12695 Gene Fidell Thu, 11 Mar 2010 21:46:34 +0000 http://www.caaflog.com/?p=5012#comment-12695 1452/1628 -- you folks work this out, but if anyone has suggestions for programs that NIMJ should undertake or amicus briefs that should be filed (supporting the government, the defense, or neither), please email us at nimj@wcl.american.edu. 1452/1628 — you folks work this out, but if anyone has suggestions for programs that NIMJ should undertake or amicus briefs that should be filed (supporting the government, the defense, or neither), please email us at nimj@wcl.american.edu.

]]> Comment on Blogging from the CAAF Conference by Anonymous http://www.caaflog.com/2010/03/10/blogging-from-the-caaf-conference/#comment-12694 Anonymous Thu, 11 Mar 2010 21:28:48 +0000 http://www.caaflog.com/?p=5012#comment-12694 Dude, seriously. First rule of this blog: You are NOT allowed to criticize NIMJ or its President. Dude, seriously. First rule of this blog: You are NOT allowed to criticize NIMJ or its President.

]]> Comment on Blogging from the CAAF Conference by Anonymous http://www.caaflog.com/2010/03/10/blogging-from-the-caaf-conference/#comment-12693 Anonymous Thu, 11 Mar 2010 19:52:51 +0000 http://www.caaflog.com/?p=5012#comment-12693 not to defend CAAF, however, if the presenters simply rehashed the term's opinions you would get equal complaints about redundancy of the speakers. I do think new appellate counsel lack a historical understanding of the Code. Maybe NIMJ - who instead seem to focus their resources on more media-friendly issues (see detainee litigation) - could offer a friendly hand. Before you going bashing my post for being anonymous, please make sure you have on hand the amount of money NIMJ spent on detainee litigation versus let's say something a little more pedestrian - Sixth amendment cases. not to defend CAAF, however, if the presenters simply rehashed the term’s opinions you would get equal complaints about redundancy of the speakers. I do think new appellate counsel lack a historical understanding of the Code. Maybe NIMJ – who instead seem to focus their resources on more media-friendly issues (see detainee litigation) – could offer a friendly hand. Before you going bashing my post for being anonymous, please make sure you have on hand the amount of money NIMJ spent on detainee litigation versus let’s say something a little more pedestrian – Sixth amendment cases.

]]> Comment on CAAFlog Contributors Against Keep America Safe Ad by Anon2 http://www.caaflog.com/2010/03/08/caaflog-contributors-against-keep-america-safe-ad/#comment-12691 Anon2 Thu, 11 Mar 2010 14:12:28 +0000 http://www.caaflog.com/?p=4981#comment-12691 Arguably, questioning the angle or motivations of someone working in government and representing the people is part of engaging in democracy. The fact is, however, Liz Cheney & Crystal are not questioning motives: they are pushing for people to be named and publicly vilified; they are scapegoating to distract the public from "the most dramatic, sustained and radical challenge to the rule of law in American history," (Arthur Schlesinger) which Liz's father and Crystal's ilk presided over under the previous administration. We can only hope that the wider public - as demonsrtated by this blog - can see through such base tactics. Arguably, questioning the angle or motivations of someone working in government and representing the people is part of engaging in democracy. The fact is, however, Liz Cheney & Crystal are not questioning motives: they are pushing for people to be named and publicly vilified; they are scapegoating to distract the public from “the most dramatic, sustained and radical challenge to the rule of law in American history,” (Arthur Schlesinger) which Liz’s father and Crystal’s ilk presided over under the previous administration. We can only hope that the wider public – as demonsrtated by this blog – can see through such base tactics.

]]> Comment on Blogging from the CAAF Conference by 'Press Badge' http://www.caaflog.com/2010/03/10/blogging-from-the-caaf-conference/#comment-12689 'Press Badge' Thu, 11 Mar 2010 02:36:03 +0000 http://www.caaflog.com/?p=5012#comment-12689 Maybe you should let them know ahead of time that you'll be there, then at least they will know beforehand that it's "on the record." Maybe you should let them know ahead of time that you’ll be there, then at least they will know beforehand that it’s “on the record.”

]]> Comment on Fort Lewis double homicide case referred capitally by Anonymous http://www.caaflog.com/2010/03/09/fort-lewis-double-homicide-case-referred-capitally/#comment-12687 Anonymous Thu, 11 Mar 2010 00:53:23 +0000 http://www.caaflog.com/?p=5005#comment-12687 Maybe this should be posted on DoD's webpage observing National Women's History Month and saluting the many contributions of American Women to our country. http://www.defense.gov/specials/womenshistory/ Maybe this should be posted on DoD’s webpage observing National Women’s History Month and saluting the many contributions of American Women to our country.

http://www.defense.gov/specials/womenshistory/

]]> Comment on Blogging from the CAAF Conference by Anonymous http://www.caaflog.com/2010/03/10/blogging-from-the-caaf-conference/#comment-12686 Anonymous Thu, 11 Mar 2010 00:43:52 +0000 http://www.caaflog.com/?p=5012#comment-12686 Well, that kind of logic only goes so far. If they had classes on tap-dancing and souffle baking I couldn't complain then either? It's not unfair to expect that the conference will at a minimum have more than one of it's speakers address criminal law or advocacy. The one speaker who specifically had that as his speech, while highly entertaining, talked about actual advocacy pointers the last few minutes of his time up there. I'm just a lowly appellate attorney, my recommendation would be "criminal law and advocacy stuff." Well, that kind of logic only goes so far.

If they had classes on tap-dancing and souffle baking I couldn’t complain then either?

It’s not unfair to expect that the conference will at a minimum have more than one of it’s speakers address criminal law or advocacy.

The one speaker who specifically had that as his speech, while highly entertaining, talked about actual advocacy pointers the last few minutes of his time up there.

I’m just a lowly appellate attorney, my recommendation would be “criminal law and advocacy stuff.”

]]> Comment on Blogging from the CAAF Conference by Anonymous http://www.caaflog.com/2010/03/10/blogging-from-the-caaf-conference/#comment-12685 Anonymous Thu, 11 Mar 2010 00:37:05 +0000 http://www.caaflog.com/?p=5012#comment-12685 The Court asks for recommendations for the program. If you gave none, do not complain. The Court asks for recommendations for the program. If you gave none, do not complain.

]]> Comment on Blogging from the CAAF Conference by Anonymous http://www.caaflog.com/2010/03/10/blogging-from-the-caaf-conference/#comment-12684 Anonymous Thu, 11 Mar 2010 00:32:41 +0000 http://www.caaflog.com/?p=5012#comment-12684 That was a pretty bad first day. I'm not sure how much a criminal appellate attorney gets out of that day. It seemed geared more to the judges and the more senior folks in the room than the O-3 and O-4 litigators. Other than the five minutes shoehorned into the judge's string of entertaining stories, there was really no criminal law discussed today, or really a lot of advocacy tips for that matter. I'm certainly willing to take a break from my case load to learn new things from wise people on criminal law, but that's not what happened today. Very disappointing. That was a pretty bad first day. I’m not sure how much a criminal appellate attorney gets out of that day. It seemed geared more to the judges and the more senior folks in the room than the O-3 and O-4 litigators.

Other than the five minutes shoehorned into the judge’s string of entertaining stories, there was really no criminal law discussed today, or really a lot of advocacy tips for that matter.

I’m certainly willing to take a break from my case load to learn new things from wise people on criminal law, but that’s not what happened today. Very disappointing.

]]> Comment on Blogging from the CAAF Conference by Anon http://www.caaflog.com/2010/03/10/blogging-from-the-caaf-conference/#comment-12683 Anon Wed, 10 Mar 2010 23:44:06 +0000 http://www.caaflog.com/?p=5012#comment-12683 Last speaker was horrible. I think she literally read her law review article verbatim. Last speaker was horrible. I think she literally read her law review article verbatim.

]]> Comment on Blogging from the CAAF Conference by Phil Cave http://www.caaflog.com/2010/03/10/blogging-from-the-caaf-conference/#comment-12682 Phil Cave Wed, 10 Mar 2010 23:42:14 +0000 http://www.caaflog.com/?p=5012#comment-12682 They may not be, but for the price some of us get our annual CLE credit with the bar. Compared to $750.00 plus a year in VA for 12 credits -- well, it's an overhead issue. I will say that I didn't find much relevant or of use in the afternoon session. They may not be, but for the price some of us get our annual CLE credit with the bar. Compared to $750.00 plus a year in VA for 12 credits — well, it’s an overhead issue.
I will say that I didn’t find much relevant or of use in the afternoon session.

]]> Comment on Blogging from the CAAF Conference by not gene fidell http://www.caaflog.com/2010/03/10/blogging-from-the-caaf-conference/#comment-12681 not gene fidell Wed, 10 Mar 2010 23:38:55 +0000 http://www.caaflog.com/?p=5012#comment-12681 If you want the service appellate divisions there....gear it towards them. Also Judge erdman wasnt there and stuckey and ryan both left early...it was a joke and they knew it as well. While the speakers may be interesting, are the services and officers really willing to fork over the $100 for interesting? If you want the service appellate divisions there….gear it towards them. Also Judge erdman wasnt there and stuckey and ryan both left early…it was a joke and they knew it as well. While the speakers may be interesting, are the services and officers really willing to fork over the $100 for interesting?

]]> Comment on Fort Lewis double homicide case referred capitally by Cloudesley Shovell http://www.caaflog.com/2010/03/09/fort-lewis-double-homicide-case-referred-capitally/#comment-12680 Cloudesley Shovell Wed, 10 Mar 2010 23:21:03 +0000 http://www.caaflog.com/?p=5005#comment-12680 D'oh! D’oh!

]]> Comment on Blogging from the CAAF Conference by rules http://www.caaflog.com/2010/03/10/blogging-from-the-caaf-conference/#comment-12679 rules Wed, 10 Mar 2010 21:45:06 +0000 http://www.caaflog.com/?p=5012#comment-12679 Ain't no law that says a man has to wear pants. Ain’t no law that says a man has to wear pants.

]]> Comment on Courts-Martial Not Good Enough For Congress Gohmert Anymore by Friend http://www.caaflog.com/2010/03/06/courts-martial-not-good-enough-for-congress-gohmert-anymore/#comment-12677 Friend Wed, 10 Mar 2010 19:44:54 +0000 http://www.caaflog.com/?p=4957#comment-12677 Mr No Man: The good congressman practiced under the old manual. I get concerned where he intimates that military justice is some meager lesser form of justice (used loosely here) meted out in some tent, trench or fan room by burly MPs, APs, or MAAs without the basic protections afforded under the Constitution. How many of you bloggers even practiced under the old manual anyway? Mr No Man: The good congressman practiced under the old manual. I get concerned where he intimates that military justice is some meager lesser form of justice (used loosely here) meted out in some tent, trench or fan room by burly MPs, APs, or MAAs without the basic protections afforded under the Constitution.

How many of you bloggers even practiced under the old manual anyway?

]]> Comment on CAAF affirms in Craig by John O'Connor http://www.caaflog.com/2010/03/09/caaf-affirms-in-craig/#comment-12676 John O'Connor Wed, 10 Mar 2010 18:53:50 +0000 http://www.caaflog.com/?p=5008#comment-12676 My general view on a guilty plea/PTA case, particularly at a special court-martial, was that if a count was multiplicious for sentencing I would basically drop one of the specs if the DC didn't want to have his client plead to both. What did it really matter to have a conviction for two specs if they would be treated as one for sentencing? These issues are much better worked out before the PTA is signed, and before you get in court for the plea. My general view on a guilty plea/PTA case, particularly at a special court-martial, was that if a count was multiplicious for sentencing I would basically drop one of the specs if the DC didn’t want to have his client plead to both. What did it really matter to have a conviction for two specs if they would be treated as one for sentencing?

These issues are much better worked out before the PTA is signed, and before you get in court for the plea.

]]> Comment on CAAF affirms in Craig by John O'Connor http://www.caaflog.com/2010/03/09/caaf-affirms-in-craig/#comment-12675 John O'Connor Wed, 10 Mar 2010 18:49:22 +0000 http://www.caaflog.com/?p=5008#comment-12675 Actually, Mr. Anonymous, if the accused didn't satisfy the condition precedent of pleading guilty to, and having the MJ accept the pleas, for the charges specified in the PTA, there was nothing to "revoke." The PTA fails for either absence of a condition precedent or for breach by the accused depending on how you look at it. So your premise that I would be "revoking" anything, and your suggestion of impropriety or exceeding authority, fail for a lack of understanding of contract law. That said, everyone certainly understood that, under the circumstances, the chances of getting a new or revised deal without TC support was exceedingly unlikely. Actually, Mr. Anonymous, if the accused didn’t satisfy the condition precedent of pleading guilty to, and having the MJ accept the pleas, for the charges specified in the PTA, there was nothing to “revoke.” The PTA fails for either absence of a condition precedent or for breach by the accused depending on how you look at it. So your premise that I would be “revoking” anything, and your suggestion of impropriety or exceeding authority, fail for a lack of understanding of contract law.

That said, everyone certainly understood that, under the circumstances, the chances of getting a new or revised deal without TC support was exceedingly unlikely.

]]> Comment on Fort Lewis double homicide case referred capitally by John O'Connor http://www.caaflog.com/2010/03/09/fort-lewis-double-homicide-case-referred-capitally/#comment-12674 John O'Connor Wed, 10 Mar 2010 18:39:29 +0000 http://www.caaflog.com/?p=5005#comment-12674 Actually, Cloudesley, Kinsella was the warden. Singeton was Dial's mother. Actually, Cloudesley, Kinsella was the warden. Singeton was Dial’s mother.

]]> Comment on Fort Lewis double homicide case referred capitally by Cloudesley Shovell http://www.caaflog.com/2010/03/09/fort-lewis-double-homicide-case-referred-capitally/#comment-12673 Cloudesley Shovell Wed, 10 Mar 2010 17:49:09 +0000 http://www.caaflog.com/?p=5005#comment-12673 JO'C--Aha! I knew that the CMA case couldn't possibly be good law, but the follow-on habeas case doesn't show up in Shepard's, and I didn't search any further. The habeas case was brought by Mrs. Dial's mother, thus Kinsella rather than Dial. Learn something new every day. JO’C–Aha! I knew that the CMA case couldn’t possibly be good law, but the follow-on habeas case doesn’t show up in Shepard’s, and I didn’t search any further. The habeas case was brought by Mrs. Dial’s mother, thus Kinsella rather than Dial. Learn something new every day.

]]> Comment on CAAF affirms in Craig by Article16 http://www.caaflog.com/2010/03/09/caaf-affirms-in-craig/#comment-12672 Article16 Wed, 10 Mar 2010 16:20:11 +0000 http://www.caaflog.com/?p=5008#comment-12672 I'd probably have the same reaction if I were a TC. Very similar offenses make it easier because 1) if the client is provident for one then he's good for the other, and 2) the client might figure "it's two convictions, but it's basically the same thing so it's not so bad." On the other hand, as a DC, if there's colorable arguments for either UMC or multiplicity....then it doesn't seem right to waive them just because the military justice shop is against having the argument. I’d probably have the same reaction if I were a TC.
Very similar offenses make it easier because 1) if the client is provident for one then he’s good for the other, and 2) the client might figure “it’s two convictions, but it’s basically the same thing so it’s not so bad.” On the other hand, as a DC, if there’s colorable arguments for either UMC or multiplicity….then it doesn’t seem right to waive them just because the military justice shop is against having the argument.

]]> Comment on CAAF affirms in Craig by Anonymous http://www.caaflog.com/2010/03/09/caaf-affirms-in-craig/#comment-12671 Anonymous Wed, 10 Mar 2010 16:04:07 +0000 http://www.caaflog.com/?p=5008#comment-12671 Mr. O'connor - under your hypothetical did the convening authority empower you to revoke his deals in the hall way without his knowledge? Mr. O’connor – under your hypothetical did the convening authority empower you to revoke his deals in the hall way without his knowledge?

]]> Comment on CAAF affirms in Craig by John O'Connor http://www.caaflog.com/2010/03/09/caaf-affirms-in-craig/#comment-12670 John O'Connor Wed, 10 Mar 2010 15:55:15 +0000 http://www.caaflog.com/?p=5008#comment-12670 When I was a TC (granted, it's some time ago), I would not have viewed a multiplicity for sentencing argument as inconsistent with the standard PTA (i.e., a PTA that didn't promise no motions). If you got up and argued that two offenses to which the accused agreed to plead guilty were multiplicious for findings, or that one needed to be dismissed for UMC, I would have taken a recess, gone into the hall, and told you that your client was losing his deal if such a motion got granted. When I was a TC (granted, it’s some time ago), I would not have viewed a multiplicity for sentencing argument as inconsistent with the standard PTA (i.e., a PTA that didn’t promise no motions).

If you got up and argued that two offenses to which the accused agreed to plead guilty were multiplicious for findings, or that one needed to be dismissed for UMC, I would have taken a recess, gone into the hall, and told you that your client was losing his deal if such a motion got granted.

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