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A series of pertinent – and impertinent – observations about military justice. 

This blog is no place to debate political issues such as  torture/enhanced interrogation.  What is of note, however, is how the matter is being explained:    “the lawyers said it was okay.”

 That is badly-fractured reasoning.   The decision-maker is not the lawyer.   And staff attorneys who might have “made the argument” [pro and con]  are being falsely portrayed  as the ultimate decision-makers. That is decidedly unfair.

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The CHAMPION  magazine of the National Association of Criminal Defense Lawyers  continues to publish articles of immediate value to military practitioners.

Argument.     A useful article in the July/August issue centers on visual aids in support of advocacy.   The focus is on how the defense attorney can more powerfully support closing argument.

Visually, it’s a “new world” – studies suggest that 83% of modern learning occurs visually; and the average male juror watches 2.7 hours of television per day.    So wise advocates will do well to use diagrams, charts, and new software to strengthen their presentations.

In that vein, rules for slides include:

  •  keep titles to one line
  •  text lines — five words or less
  •  a new slide at least every three minutes
  •  use bullet points
  • avoid difficult-to-read capital letters
  • include plenty of photos and video clips to keep the presentation engaging.

 Such tactics can be usefully employed in military presentencing.   Two examples:  Photos  or a video  from a hardscrabble background might draw sympathy for an accused who “came up the hard way.”    And the client who’s a caring family man can be supported by a clip of him playing with his children.

Two cutting edge ideas:

 — Animation.  This can be used, e.g.,  to show positions of the accused and victim to support a self-defense theory;  or to picture reasons a frightened young Marine might go UA

 — Use an artist —  drawing images and text while the argument is ongoing  — to highlight important points

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Evidence. The same issue has a useful article on how to handle  an accused’s silence during police questioning.  Prosecutors have two new “gimmicks” – using so- called adoptive admissions under MRE 801 d2B ; and trial counsel’s impeachment of an accused’s silence is he/she chooses to take the stand.

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The October 2014 ARMY LAWYER  features Major Kagawa’s interesting guide to immigration consequences at courts and boards.   The article is pure gold, given the Supreme Court’s ruling that defense counsel must advise noncitizen clients of the immigration consequences of guilty pleas under Padilla v. Kentucky, 559 US 356, 374 (2010).  Lots of research; many useful appendices.

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In the old-age, we called  them ”reports of survey.”  Today, they’re  FLIPL – Financial Liability Investigations of Property Loss.  Major Ballard’s article provides a workable primer for practitioners.

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 Regardless of the service, judge advocates are becoming substantially involved in command decisions to separate members for personality disorders or other physical/mental conditions.  Lt. Jones offers an overview and materials on as attention deficit disorder, autism, and bipolar conditions.

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