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.

My title is from the title of a piece in Mother Jones.

Federal agencies don’t have a uniform definition of sexual assault, and that has led to dramatically different estimates on the frequency of sexual violence in the United States, according to a new report from the Government Accountability Office.

Currently, four federal agencies—the Department of Justice, the Department of Education, the Department of Health and Human Services, and the Department of Defense—manage at least 10 efforts to collect data. The problems begin in how sexual violence is described and categorized. Agencies rarely used the same terminology to describe acts of sexual violence, the report found, and even when they did, there were differences in how they measured each act[.]

The NMCCA has issued two significant opinions this week, one of which is worth the read while the United States prosecution of Bowe Bergdahl continues.

United States v. Solis, __ M.J. ___ (N-M Ct. Crim. App. 2016).  The case presents discussion of continuing issues relating to the nature of the proof and member (jury) instructions in military sexual assault cases.  These types of cases, especially where alcohol is involved present complex challenges to the military defense counsel.

  1. Article 120(b)(3)(A) of the UCMJ is unconstitutional because the language “incapable of consenting to the sexual act because she was impaired by . . . alcohol” is unconstitutionally vague.

The Army Court of Criminal Appeals will hear oral argument on Wednesday, August 3, 2016, at 10 a.m., in United States v. Ahern, No. 20130822.  The court will consider the arguments of counsel on the following two issues.

I. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE ALLOWED TRIAL COUNSEL TO ARGUE THAT APPELLANT FAILED TO DENY SEVERAL PRETRIAL ALLEGATIONS “BECAUSE HE WAS GUILTY.”

II. [WHETHER] IT WAS PLAIN ERROR WHEN THE MILITARY JUDGE PERMITTED TRIAL COUNSEL TO ARGUE THAT APPELLANT’S CONSULTATION WITH A CRIMINAL DEFENSE ATTORNEY WAS INDICATIVE OF HIS GUILT.

In today’s CAAF Journal we see:

No. 16-0615/AF. U.S. v. Zavian M.T. Addison. CCA S32287. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT IS ENTITLED TO NEW POST-TRIAL PROCESSING BECAUSE THE ADDENDUM TO THE STAFF JUDGE ADVOCATE’S RECOMMENDATION FAILED TO CORRECT AN ERROR IN APPELLANT’S CLEMENCY SUBMISSION.

If you are being prosecuted in the Air Force.

If your military defense counsel is not raising this issue.

WHETHER THE AFCCA ERRED WHEN IT FAILED TO GRANT RELIEF WHERE THE MILITARY JUDGE INSTRUCTED THE MEMBERS, “IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY,” WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

Very broad.

Or, that’s how I interpret a 2-1 Order in H.V v. Kitchen and Randolph (RPI), MISC D. No. 001-06 (C.G. Ct. Crim. App. 8 July 2016).

At trial, the defense sought mental health records of the complaining witness.  After litigation on the issue, the military judge ruled

There is an excellent post at Volokh Conspiracy.

Here’s the problem in a nutshell: So much at trial can turn on the testimony of a police officer. For a criminal defendant, life and liberty may depend on the ability to impeach the officer’s testimony. The federal constitution, as interpreted by Brady v. Maryland and its progeny, requires prosecutors to disclose to defendants any favorable, material evidence known to the prosecution team, including evidence relating to a witness’s credibility. Much impeachment evidence can be found in a police officer’s personnel file. But in many jurisdictions, a thicket of state laws, local policies, and bare-knuckle political pressure prevents access to the material in these personnel files, despite the federal constitutional requirement to disclose. In the name of protecting police privacy, criminal defendants are denied their due process rights to a fair trial.

Here’s what I ask for in my discovery requests.