This site is for the trial practitioner (the military lawyer) of military justice, and for the information of U.S. active duty, Guard, and reserve service-members, their spouses and their families. Our goal is to focus on trial practice issues in cases arising under the UCMJ and being tried at court martial. We hasten to add that nothing on this blog should be taken as specific legal advice for a specific client.

We caution trial counsel…[as to] how difficult this area of the law can be. There are still issues to be resolved in this arena…. With precedents far from settled, only the bravest of advocacy acrobats ought to tempt fate. (They do so at their own peril, for we guarantee no safety net against reversal).

United States v. Weddle, 61 M.J. 506, 510 (C.G. Ct. Crim. App. 2004), citing United States v. Edwards, 35 M.J. 351 (C.M.A. 1992).

The SCOTUS might soon give us an idea on the subject of jury nullification in Lee v. United States.

Issue: Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.

It is not obvious from the Issue that nullification is central to the case.  But, Ilya Shapiro, The Right to Hope for Jury Nullification, CATO Institute, 9 February 2017, explains.

Today we take up the defense’s assignment of error and address the application of Mil. R. Evid. 412 to the government. Does Mil. R. Evid. 412 apply to the government? Yes. Must the government follow the procedural requirements before introducing evidence that falls under Mil. R. Evid. 412? Again, yes. And, finally, what happens when the military judge admits government Mil. R. Evid. 412 evidence without first requiring the government to follow the rule’s procedural requirements? We test for prejudice.

United States v. Carista, No. 20150243 (A. Ct. Crim. App. Jan. 18, 2017).

The Virginia legislature has passed SB1563.  There are several provisions which should be adopted in military cases.

D. Whenever the Commonwealth intends to introduce expert opinion testimony at trial, the attorney for the Commonwealth shall notify in writing the accused of the Commonwealth’s intent to present such testimony not later than 14 days before trial, or as otherwise ordered by the court. The notice shall include the witness’s name and contact information, a summary of the witness’s qualifications, the substance of the facts and opinions to which the witness is expected to testify, a summary of the grounds for each opinion, and copies of written reports, if any, prepared by the witness.

There is a reciprocal requirement for the defense.  The new VA rule is consistent with federal practice under Fed. R. Crim. Pro 16(a)(G), and with then Judge D. Vowell (Army) in her court-martial scheduling orders.

MCIO ‘ware.  It still doesn’t protect your phone, especially if you give consent–but what the heck, it’s something.

NACDL Press Release: Nation’s Criminal Defense Bar Welcomes Passage by House of Representatives of the Email Privacy Act

Washington, DC (Feb. 6, 2017) – Today, the House of Representatives passed the Email Privacy Act (H.R. 387). This bill is a long overdue update of the Electronic Communications Privacy Act (ECPA), a bill passed in 1986 that governs the treatment of electronic communications. The Email Privacy Act establishes that law enforcement officers must obtain a warrant to access the content of most electronic communications and cloud-stored content from third-party providers and eliminates the arbitrary rule that would allow the government to obtain emails older than 180 days with a subpoena. The bill passed overwhelmingly in the last Congress 419-0.

AF Reporter.

THE FIFTH AMENDMENT IN THE DIGITAL WORLD 2 Technology has breathed new life into the interpretation of constitutional provisions.

EXCEPTIONAL TRANSITIONAL COMPENSATION 34 Help for Family Member Victims When Discharge Happens Before the Offense is Adjudicated [; increasing the secondary gain incentive].

The New York Times reports:

President Obama on Tuesday largely commuted the remaining prison sentence of Chelsea Manning, the army intelligence analyst convicted of an enormous 2010 leak that revealed American military and diplomatic activities across the world, disrupted the administration, and made WikiLeaks, the recipient of those disclosures, famous.

The decision by Mr. Obama rescued Ms. Manning, who twice tried to commit suicide last year, from an uncertain future as a transgender woman incarcerated at the male military prison at Fort Leavenworth, Kan. She has been jailed for nearly seven years, and her 35-year sentence was by far the longest punishment ever imposed in the United States for a leak conviction.

A Facebook post about military sexual assault training:

“There’s no need to try to understand why sexual assaults are up 550% in the Military. All women have no ability to think after one drink and are not responsible for their actions but a Male soldier is responsible for his actions with one drink. What an insult to women everywhere!! ”

Instructor: “if you sleep with your wife after she’s been drinking you actually just raped her because she is too incapacitated to consent”

The most potentially relevant is McWilliams v. Dunn, No. 16-5294, involves a question regarding the degree of independence needed for appointed mental health experts under Ake v. Oklahoma.

Then there are:

Weaver v. Massachusetts, No. 16-240:  The defendant claims his lawyer was ineffective for failing to object to a closure of the courtroom during empanelment of the jury.  Violation of the right to a public trial, when considered directly, is a “structural” error that is reversible without a showing that it actually prejudiced the defendant, but an ineffective assistance of counsel (IAC) claim requires a showing of prejudice under Strickland v. Washington.  Does IAC require a showing of prejudice when the underlying error is “structural”?  I believe Strickland is clear enough that the answer is “yes,” but there is enough of a circuit split for the high court to take it up.