Mailing It In

Every now and then, someone wants me to review their trial record for any issues that might be useful on appeal or clemency. I’m, of course, happy to oblige.

Occasionally, however, they make me really sad.

The latest tale of the tape:


Terms of the Deal

In an agreed plea bargain:

Soldier agreed to plead guilty to all charges. He also provided the government with a written stipulation of fact to substantiate each element of the offenses.

Government agreed to give nothing in return. No, really. Nothing.

Objections on Record

Government: 0

Defense: 0

Witnesses for Sentencing (Life and/or Telephonic)

Government: 0

Defense: 0

Matters in Aggravation

Government argued that the charges alone were aggravation enough for a max sentence. (No defense objection, even if to merely call-out the flawed logic.)

Matters in Extenuation or Mitigation

Defense gave an extremely brief closing, stating that second chances are important.


Some assigned military defense counsel are exceptionally capable and dedicated. Some are anything but dedicated and capable.

This is a prime example of the latter. The young Captain representing this kid didn’t just mail-it-in, he was too lazy to even walk to the mailbox.

Sad. Really sad.

Thanks for Visiting

Here’s a bit shout-out to our recent visitor from the Republic of Mauritius.

We hope you found something here to your liking. Tell all your friends.

My Take on the Pistorius Proceedings

Honestly, I don’t know any more than you do about the Pistorius thing.

VIa NY Times

But, have you ever seen a courtroom with such dramatic lighting? I’ve seen a few bail hearings, and they tend to occur in the basement courtroom with cinderblock walls or via video teleconference from the detention facility.

They must have a special courtroom down in Johannesburg for cases that garner a worldwide audience, or they rented the one used for the People’s Court.

A College-Bound Teenager’s View of the US

So, here’s how a college-bound teenager I know views the United States of America.

Blue: Acceptable states in which to attend college.

Red: Too hot and/or higher risk of being lynched.

Green: States populated by clones of Larry the Cable Guy.

Gray: Those states have colleges/universities? Who knew?

Pink: Areas where people do not use deodorant.

Burgundy: Will consider, but only for a very sweet, incentive-laden deal.

Orange: New England, which looks like the corner of the US where lint collects.

Neon Green: New Jersey, one big cesspool.

Black: An imaginary state, created on paper to allow for an even 50.

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Dear 63%ers of the 2nd Congressional District of Illinois

Last November, you overwhelmingly (63%) elected a person with the following attributes (at the time of the election) as your representative in Congress:

  • Incumbent
  • Absent from office since June 2012 with no return date known (initially, his whereabouts were unknown to the public he purported to zealously represent as a lawmaker).
  • Diagnosed this year with “mood disorder” and bipolar disorder.
  • Something about a Peruvian hostess.
  • Implicated in the Senate-seat-selling scandal of Rod Blagojevich.
  • Currently the subject of a Congressional Ethics Investigation.
  • Previously implicated in an FBI investigation.
  • Currently the subject of an FBI criminal investigation.
  • Previously named one of the 15 most corrupt members of Congress by liberal group Citizens for Responsibility and Ethics in Washington.

Now, make the following changes to bring us to today:

  • Subtract: Incumbent (since he resigned shortly after you ushered him back into office)
  • Add: “Pleaded guilty on February 20, 2013 to one count of wire and mail fraud in connection with his misuse of $750,000 of campaign funds. As part of a plea agreement, prosecutors will recommend that Jackson be sentenced to between 46 to 57 months in prison.” (via his Wikipedia entry)

Knowing that we subtracted one attribute and added one, that leaves us at a net change of zero. Thus, he’s still the same man you elected in November.

So, assuming the worst possible sentence based on the information above, we should expect the dedicated and steadfast 63%ers to put him back into office in 2018.

Discovery: Give and Take

Texas is currently looking to revise it’s discovery rules, and it has a few defense counsel gnashing teeth at the proposed changes to reciprocal discovery. Reciprocal discovery are obligations placed upon defense attorneys to provide prosecutors with certain information, statements, and notifications prior to trial.

For a good overview of the Texas rule and links to other opinions, take a look at what Gideon (anonymous pseudonym of a computer in a Public Defender office in New England which, years ago, achieved self-awareness) at A Public Defender has to say about it.

Gid and I share the same view. Discovery rules are a give and take. I can’t think of a time when I’ve given-up something that wounds my client’s case. At the same time, discovery has yielded many, many benefits to my cases. Granted, the military rules are very liberal and vigorously enforced by military judges–especially in favor of the defense.

Note: I’ve attached the text of military reciprocal discovery rules at the end of this article, if you’re really, really bored.

What I think is a bigger benefit of this discussion is that it is crossing jurisdictional lines. I’ve met many lawyers who become mired in their chosen jurisdiction and forget that anything outside of their state/county/parish exist. Gid juxtaposed the TX rules with those of his state, and I’ve done the same with mine. Were it not for the Texas hubbub, I wouldn’t have reviewed the Rule for Court-Martial.

Too often, we merely accept our local/state rules because we are familiar with them.There’s comfort derived from the same because you know how it works, and how it won’t. That doesn’t make it right, or the best system. It helps to leave the house now and then.

With that said, here’s my take on the TX reciprocal discovery (juxtaposed with Rule for Court-Martial 701).

Sec. 2. DISCLOSURE BY DEFENDANT. (a) As soon as practicable after receiving the initial disclosure […] the defendant shall disclose […] and permit inspection, photocopying, and photographing of the following materials and information:

(1) any written or recorded statement by a witness, […] if the defendant intends to call the witness at the trial;

Yep, already have to do this. RCM 701(b)(1)

(2) any record of a criminal conviction admissible for impeachment […] of a witness, […] the defendant intends to call at the trial, if that information is known to the defendant;

Nope, not doing it. Prosecutors can go to their fancy-schmancy database (or that of their LEOs) and find it themselves.

(3) any physical or documentary evidence that the defendant intends to use at the trial and, on a showing of materiality by the attorney representing the state, the opportunity to test that evidence;

This is a fun one in the military. Defense counsel has a choice to make. If a formal discovery request is made for things outside the prosecutor’s automatic obligations, the defense counsel triggers additional reciprocal discovery obligations. Make good choices, defense counsel. RCM 701(b)(3)

(4) the names and addresses of the witnesses called to present evidence[…] the defendant intends to call at the trial; and

Why this isn’t weaved-into (1) is not known to me. Again, RCM 701(b)(1)

(5) any report produced by or for an expert witness the defendant intends to call at the trial.

As with (3), defense counsel should make good choices. RCM 701(b)(4)

(b) On a request by the state, a defendant planning to offer evidence of one or more defenses listed in Chapter 8 or 9, Penal Code, or evidence of an alibi defense, shall file a good faith notice of intent to raise the defense […] Any notice provided under this subsection is for purposes of discovery only and is not admissible at trial unless the court finds that the contents of the notice were not made in good faith.

Disclosure of certain defenses is old news for military practitioners, with a few additional caveats and duties. RCM 701(b)(2)

So, the TX rules are certainly not shocking to my conscience, but they might be if I’d been immersed in the previous discovery rules for years or decades. To me, they appear to be the usual give and take that generally benefits the accused far more than the government.

As promised, here’s the rules that bind me in my jurisdictions (from Rule for Court-Martial 701; please ignore any strange hyphens, as they are a result of cutting and pasting from the Manual for Courts-Martial):

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