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.

Can a failure to file a pretrial motion equal ineffective assistance of counsel?  The BLUF is yes in some cases.  In some instances I have argued IAC on appeal for failing to make a meritorious motion.  The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue.  The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King.  The issue of IAC for failure to raise a pretrial motion is neither novel nor rare.  Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion.  I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges.  A more common issue is a motion to suppress, or speedy trial, or UCI.

  1. Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue:  [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
  2. Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”
  3. Both TDC acknowledge that it was not until after participating in a post-trial debrief with the military judge, who asked whether they had filed a suppression motion, that they recognized the issue.

So how is this admitted “failure” to be reviewed. The court states the standard as a need to show a reasonable probability the motion would be a success, and this must be a substantial chance, not a mere probability. United States v. Jameson, 65 M.J. 160 (C.A.A.F. 2007); United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001).  Without this finding, there is no IAC even if there is an error, because there is no prejudice.  However, the dissenters, expressed through Judge King would set aside the findings and sentence on the IAC issue. The court then goes into the ongoing issue of when is a person acting within a official capacity. Finding no substantial likelihood of success on the motion the court finds no harmful and prejudicial error.  There has been some discussion already on the requirement to advise a person of their Article 31, UCMJ, right to silence.

Expect to see Spurling at CAAF, potentially as a trailer.

Spurling wins something on the inappropriate sentence – a set aside of the BCD.

Do you have to raise every single motion?  No.

Do you have to raise every single motion the client asks you to?  No.

I wonder what the MJ would have done if the counsel had asked for a post-trial session to litigate the motion at that time, if for no other reason than to make a record for appeal?  We know the MJ can hold such a hearing.


Some years ago I represented a Soldier accused of multiple assaults and rapes of his wife, and of his girlfriends.  The rapes allegedly included him choking the complaining witness during the rapes.

He told me – and later the members at his court-martial – that he and his wife consensually engaged in choking during sex as part of rough sex because she liked it.  At the time I was already aware of autoerotic behavior, so this didn’t seem too off-the-wall to me as a potential defense.  Almost all forensic pathology and death investigations texts have a section on the deadly act of autoeroticism.  So I researched “choking during sex” and came across quite a bit of research and current research about the “choking game,” and  “erotic asphyxiation.”  There is confusion over application ofthe term and the scope of the behavior.  There is even a website that describes why, in the writer’s view, women like to be choked during sex, and how to do it properly.  Like autoeroticism, the choking game can be deadly or cause serious harm.

Since that case I have had a number of cases where the complaining witness alleges she was choked while being raped, and I have investigated that as a possible defense.  I have several appeals now where this issue is clearly presented.  But in each of these appellate cases the defense counsel ignored or pooh-pooed the idea that the client was telling the truth about rough sex involving choking and so may have missed a potentially valid defense.

The Wikipedia entry on the choking game begins, “The choking game (also known as the fainting game and a wide variety of local slang names) refers to intentionally cutting off oxygen to the brain with the goal of inducing temporary syncope and euphoria.”  I cite Wikipedia because it is generally consistent with the research and anecdotal information I am aware of.  Wikipedia goes on to suggest the following.

Limited research has been conducted regarding motivations for practicing the fainting game, although thrill-seeking has been identified as a risk factor, as has the perception that it is a low-risk activity. Anecdotal reasons stated include:

Peer pressure, a challenge or dare, a rite of passage into a social group or amusement over erratic behavior.

Curiosity in experiencing an altered state of consciousness, the experience of a greyout, or an imagined approximation to a near-death experience.

A belief that it can induce a brief sense of euphoria (a rushing sensation or high).

The prospect of intoxication, albeit brief, at no financial cost.

Reasons for practice are distinct from erotic asphyxiation. Steve Field, chairman of the Royal College of General Practitioners in London, claims that the fainting game is pursued primarily by children and teens “to get a high without taking drugs.” Children “aren’t playing this game for sexual gratification.” It is frequently confused with erotic asphyxiation, which is oxygen deprivation for sexual arousal. Unlike erotic asphyxiation, practice of the fainting game appears to be uncommon in adulthood.

Here’s the Trial-Craft.  The prosecution identified an expert to come and testify about the physical effects of choking a person as a way to prove an aggravated assault as well as the rape.  But, that’s all they talked to the expert about during their interviews and preparation.  When I talked to the expert I talked about the choking issues and it turned out that based on his current practice and experience he was well aware of the choking game and it’s current “practice” especially by the young.  So when it came to trial I was able to make their expert my expert – to great effect.

The choking game defense in my case did result in acquittals on the rapes.

On 2 October, the Supreme Court granted certiorari in a case that might have important ramifications for military justice – Ohio v. Clark. And it is a source for potential motions going forward, regardless of CAAF’s recent Squire opinion.  Here is the question presented.

Whether an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.

So you can see where I am going.

  1. All military members, and certainly those in the Department of the Navy by specific regulation have an obligation to report known offenses.
  2. There is a family advocacy program that routinely receives and investigates reports of domestic violence, including child abuse and spouse abuse.
  3. Medical providers undergo credentials reviews and adverse actions, which can sometimes parallel criminal investigations.

Clark presents a split in state supreme court practice.  As a result of Clark, “the Ohio Supreme Court held both that this mandatory-reporting duty turned daycare teachers into “agents of the state for law enforcement purposes” and that a child’s out-of-court statements to the teachers qualified as “testimonial” Under the Confrontation Clause.”  Pet. at i.

The state advanced four reasons for a grant: (1) prior Supreme Court cases have yet to address statements to non law enforcement personnel, (2) there is a split with other states (see pet. beginning at 18 for discussion of the other state resolutions0, (3) the issues is a reoccurring one involving child safety, and (4) this is a good case to decide.

The state specifically mentions United States v. Squire, 72 M.J. 285 (C.A.A.F. 2013), as being contrary to the Ohio Supreme Court holding.  See Zach’s analysis of Squire here.  Appellee makes the point that five of the eight cited cases by the state involve medical providers in the course of a medical examination “addressing immediate health needs.” As Appellee points out, that’s Squire.

Should the Supreme Court side with Appellee, Squire is likely to remain good law for military justice practitioners, because there is a significant distinction between a child or other person presenting to a medical provider for medical care and a teacher or FAP person seeking information.  The really interesting point will be how leaders may be affected.

Your weekend reading program.

Many, many, many years ago, as a police officer I had attempted to arrest a suspect who successfully got away.  Some days later, I saw a CID officer bringing in a person to the station – and I said, “that’s him.”  It wasn’t, I was wrong.

My first general court-martial in 1980 was a contested double armed robbery.  We had extensive litigation over a classic “show-up” at the crime scene.  The client was restrained in a police car, the victim was brought over to look at him and identified him.  That hard fought motion was lost.  (I actually remember this case as my first “war story” in the defense trenches for other reasons – for example when the client gets in a fight with four chasers in front of the members.  My quickest not guilty finding was less than five minutes, this was my quickest guilty finding – less than 15 minutes.)

Over the last 34 years, I have had very few cases that hinge on a witness identifying the client as the person who committed the alleged offenses.  And when that has happened there have been sufficient other witnesses or evidence to corroborate the identification – like DNA.  So for the military practitioner, the new report of the National Research Council, National Academy of Sciences, called Identifying the Culprit: Assessing Eyewitness Identification (2014), is not likely to be relevant to your studies at first blush.

But that does not mean – here comes the double negative – that it’s not worth the read.  A news release of the Academy makes this statement, “Science has provided an increasingly clear picture of the inherent limits in human visual perception and memory that can lead to errors, as well as the ways unintentional cues during law enforcement processes can compromise eyewitness identifications, the report says.” The same variables that might affect an eyewitness ability to remember and identify a suspect also impact on their ability to remember and relate events of the alleged crimes.

  • Lighting.
  • Stress.
  • Alcohol.
  • Race.
  • Distractors.

As well as “unintentional cues during law enforcement processes.”

For more on how investigators can spoilate witness accounts, we should remember our lessons on the interviewing of children, a long standing issue and concern.  The same goes with unintentional witness spoliation through statement conformity.  For more worth the read items try these.

Gabbert, Fiona; Wright, Daniel B.; Memon, Amina; Skagerberg, Elin M.; and Jamieson, Kat, “Memory Conformity Between Eyewitnesses” (2012). Court Review: The Journal of the American Judges Association. Paper 382.

Anne M. Ridley, Fiona Gabbert, David J. La Rooy, Suggestibility in Legal Contexts: Psychological Research and Forensic Implications, (2013).

Helen M. Paterson, Richard I. Kemp and Joseph P. Forgas, Co-Witnesses, Confederates, and Conformity: Effects of Discussion and Delay on Eyewitness Memory, 16 Psychiatry, Psychology and Law, Supplement, 2009, S112–S124.

Each of these items may give you insight into your own sexual assault case which, because of alcohol, raises witness spoilation considerations.  And as the research appears to show, the “training” in sexual assaults being given may contribute not inform about spoliation in sexual assault witnesses.

 According to a recent study, people not only conform their opinions publicly to social pressure, but passive social pressure can also change peoples’ memories subconsciously.

Micah Edelson1, Tali Sharot Raymond J. Dolan, Yadin Dudai, Following the Crowd: Brain Substrates of Long-Term Memory Conformity, 333 Science, no. 6038 pp. 108-111 (1 July 2011).

The Coast Guard has an interesting opinion in United States v. Sullivan, on a members panel stacking.

A military accused does not have the same “jury” right as a civilian accused, but he does have the right to a panel (jury) that is fair and impartial.  United States v. Roland, 50 M.J. 66, 68 (1999); United States v. Nash, 71 M.J. 83 (C.A.A.F. 2011).  Oddly, and unlike the civilian case, it is the person who orders the trial who gets to select who will decide the case he has referred to trial.  The commander cannot systematically or for bad motive select a panel likely to be biased in some way toward an accused.  For example, a person who believes that all convicted accused’s must be punitively discharged.  The primary engine for challenging members once appointed is through voir dire, and then showing actual or implied bias.  United States v. Gooch, 69 M.J. 353 (C.A.A.F. 2010).

This is the second Coast Guard panel challenge case in just a short period.  United States v Riesbeck has been examined here, by colleague Sam Adams.  Riesbeck may be viewed as a “normal” issue of panel stacking.  Panel stacking questions often arise with rank or gender of the selected members.  There is the anomalous case of volunteerism in United States v. Dowty, 60 M.J. 163 (C.A.A.F. 2004), [1] which joins Sullivan as being an oddity – serious, but odd.

In Sullivan, the claim is that the client was prejudiced “by the improper exclusion of flag officers from service on his court-martial.”  Slip op. at 3.  The Appellant was a captain (O-6).  The court found that it was error to exclude flag officers from potential selection, but found the error to be harmless.

I anticipate a petition to CAAF.  It will be interesting to see what approach the appellant takes.


[1] For what it is worth, I was the Article 32, UCMJ, investigator in Dowty, in 1998.  The case had a somewhat tortuous six year appellate history, and is also significant for treatment of the Right to Financial Privacy Act’s impact on the statute of limitations in courts-martials.

Here are a couple of articles worth the read if you have some time this weekend.

The Reliability of Assault Victims’ Immediate Accounts: Evidence from Trauma Studies, Melissa Hamilton, University of Houston Law Center, September 7, 2014, Stanford Law & Policy Review, Vol. 26, 2015, Forthcoming

Ms. Leveritt has recently taken on the responsibility of Director of the Center for Prosecutor Integrity‘s Wrongful Convictions Academy, which is brand new, and is just spinning up.  See Prosecutors Have All the Power.  This article is Arkansas-specific, it may likely be applied nationwide.

This article from Cathy Young on, about sexual assaults – a more rational discussion and real call for justice.

Update 15.9.14.

Here is a link to the government notice of an intent to appeal, and a motion I have filed with the ACCA.

So, client is a medical provider initially accused of committing sexual contact by a, “fraudulent representation that the sexual contact served a professional purpose.”

Six former patients alleged that when the client gave them a heart and lung examination when they presented for medical care, he didn’t need to give one, or that it was done improperly.

After the Article 32, UCMJ, investigation the convening authority elected not to proceed on one of them, but elected to refer five specifications to general court-martial.

At trial we litigated a motion that the CA abused his discretion because the IO did not find reasonable grounds to believe a crime had been committed for three of the five.  The military judge denied the motion.

At trial we raised the motion for dismissal for failure to state an offense.  The touching’s had all been done with a stethoscope.  At no time did any complaining witness say she was touched by his body.  The argument is based on a failure in the statute to require that an object can be the source of the wrongful contact vice what the statute says – a body part.  The judge decided to defer ruling until the RCM 917 stage of trial.

Prior to evidence, the prosecution withdrew two specifications which left three for trial before the members.  The military judge denied an RCM 917 motion and again kicked the failure to state can down the road.

The members found the client guilty of only one of the three specifications.  At that time I asked the judge to enter a finding of not guilty citing to United States v. Griffith, and also asked for a decision on the motion.  Deferred again.

The members adjudged a dismissal only.

At this time the judge denied the Griffith motion, but did dismiss the specification for failure to state an offense.

Now we are waiting to see if the Gov. will take an Article 62 appeal.

This case presents some interesting factual, legal, and strategy issues.  But regardless the client’s not in jail.

Prof. Berman at sentecing law and policy invites our attention to an interesting new decision from the Third.

US v. Husmann, No. 13-2688 (3d Cir. Sept 3, 2014) (available here) .

We all of us have an a client who is charged with distribution of CP because they were using a P2P program such as Limewire, and where the automatic settings placed information in the “shared” folder.  Because the information is in the shared folder it is accessible to others who search Limewire and come across it.  Actually many clients have been caught through the FBI or some other enforcement agency trolling Limewire for such information.

The opinion in Husmann makes much of the “intentional” placing of CP in the shared folder.  But does not address the way in which the program, by default places everything in the shared folder. Normally the use needs to affirmatively change the settings for downloads not to go in the shared folder.  The opinion assumes the subject files were deliberately placed in the shared folder making them accessible to others.

So, you have a client who downloads CP via a P2P program, doesn’t realize about the automatic settings upon execution of the P2P software, and there is NO evidence that someone queried and received CP from that client’s account?  In Husmann the investigators went through the various logs to see if they could find any evidence of another computer connecting and downloading, but weren’t able to find such evidence.

Currently in the Third the person may not be convicted, see Husmannn.  It’s a 2-1 decision with a strong dissent.  It’s only the Third.

Can you use the rationale from Husmann to defeat a conviction for distribution.  Keep in mind that he court was construing the definition of “distribution” under the federal statute.  And if it’s not distribution is it an attempted distribution.

All in all an interesting read for the all to common CP case.

How many times during a trial do you try to guess what the members are thinking, and what their decision is – I would suggest we do that many times throughout a trial.  We do this because we are responding to a client’s comment about a look, a question, or the demeanor of one or more members. We do this to try and sense how our case is going for tactical reasons.  We do this because we hope to gain some “insight” on the next steps.  A pretty common reason is whether or not we feel the client needs to testify.

Of course we can never know what the members are really thinking.  During the occasional after court talk it becomes clear that what we thought the members were thinking was not what they were thinking, etc., etc., etc.

So, it’s a worthwhile effort in situational awareness to try and monitor the members.  But what happens if their thinking becomes more obvious or blatant – or possibly so.  At times, I have addressed the issue of the members having already decided the case or evidenced a bias because of a question one of them has asked.

At what point do you make an issue of the perception either with the individual member or the panel as a group?

Another area of concern is when you hear about comments made by one or more members outside the courtroom.  Perhaps something overhead in the passageway or in the head.

At what point do you make an issue of the perception either with the individual member or the panel as a group?

As with all things this is a matter of judgment.  Do you upset the members about something that is nothing, do you draw something to the attention of the members you’d rather they not focus on.  Or do you have a problem and it needs to be addressed now!

I had a case at GitMo some years ago where there was in court wrangling over a particular legal definition.  After a break we found out one of the members was looking the definition up in a legal text book.  The members deliberation was the SJA law library.  We dealt with that on the record.  This would be extraneous information.  See e.g., United States v. Lambert55 MJ 293 (C.A.A.F. 2001), about inquiry into members conduct.  Lambert is not “the” case, but it’s worth the read.  Check out, United States v. Dugan, 58 MJ 253 (C.A.A.F. 2003).

I am reminded of this piece of trialcraft by the case of United States v. Axsom, _ F.3d _ (8th Cir. Aug. 4, 2014) (No. 12-3703), brought to us by our friends at federal evidence review blog.  In that case the defense claimed that two members had come to a premature decision on guilt.Two items got the attention of the parties and the judge.

“[D]uring voir dire, “A prospective juror reported that banter between a Court Security Officer and an FBI case agent in the courtroom, while the judge and attorneys were in the jury room conducting individual voir dire, may have affected her outlook about the trial.”

o[O]n one morning during the trial, when the jurors were lining up to enter the courtroom, an alternate juror overheard one juror state: “It looks like this is going to be a long day today and tomorrow. Today may be the bulk of it.” A second juror replied, “Yeah . . . But I don’t know how much more they could say. It looks like we already know where it’s headed.”

To address the issue the judge took testimony from each of the two jurors, under oath.  While the judge concluded there were premature deliberations he declined to excuse the whole panel or either of the two jurors.  The jurors agreed not to have further discussions and also to keep an open mind.  The Eighth disagreed there were premature deliberations.  And in context of the overall trial there was no prejudicial effect on the right to a fair trial.  Essentially the evidence was insufficient on the issue.  But that doesn’t mean there would have been no meritorious issue if the evidence showed more, especially expressions of actual opinion on guilty or innocence.

So a caution for military judges as they go through the common preliminary instructions to members.  The Eighth found the trial judge’s actions effective to address the issue.  A different result maybe if the trial judge had done nothing?