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.

Cronin v. United States, __ F.3d ___ (Fed. Cir. Aug. 28, 2014), deals with claims for injuries sustained during or aggravated by conditions of service.  It is noteworthy to me because, among a number of significant claims of physical injury, the plaitiff raises issues of PTSD for which she was not to be compensated.  She attributes the PTSD partly to, multiple physical and sexual assaults, stalking, and extreme sexual harassment.

The Court of Claims found the PTSD claim without merit, and the appeals court affirmed.

For some time now each of the Services have been undergoing a draw-down.

Naturally, you would think that they would cut those with significant misconduct or performance issues, and that there should be any number who would fit into that category.

Here is an interesting piece about some of the reasons most Army majors have been let go.

It’s all about evals (and timing I would say), not racially motivated.

http://www.military.com/daily-news/2014/08/29/army-officer-firings-blamed-on-bad-evals-not-race.html?ESRC=eb.nl

Domestic violence is bad.  But I would suggest that the issue is normally only dealt with as a women’s issue.

This report should cause people to think – just a little bit – that men are not always the perpetrators, and that “alway believe the victim” – read the woman, training is flawed.

One-third of domestic violence victims in active-duty military families are men

“That the power to prosecute is a fearsome thing, and, when employed as political tool, is the quick road to tyranny.”

 Bill Otis, Politics & Prosecution, a Toxic Brew, 16 August 2014.

I am not a libertarian, but I am one of the defense counsel and independent liberals Mr. Otis will frequently berate, sometimes with rather over the top hyperbole.  I read crimeandconsequences regularly because many posts raise important questions, but you have to take note of the style.  But on this toxic issue we are of the same mind; both as to the Perry prosecution issue and also the abuse of power.

When politics drives criminal (read military) justice policy, there is a great danger that people will not apply reason, ethics, and the law – politics and justice do not generally go hand-in-hand.

Prof. Colin Miller, one of my favorite bloggers on evidence, addresses a best evidence issue raised in People v. Haggerty, No. 129, (N.Y. 2014).

Haggerty was accused of defrauding Mayor Bloomberg.  During presentation of the prosecution case they called a witness to testify about the contents of a trust fund through which the fraud was alleged to be done.

For the military defense lawyer an immediate lesson is that the defense failed to object at trial.  When litigating a court-martial under the UCMJ, all should be aware that a failure to object to evidence places the appellate military defense lawyer in the difficult position of having to argue harmful plain error.  In a footnote to United States v. Rankin, 64 M.J. 348, 351, n.3 (C.A.A.F. 2007), the court noted the numerous objections to documentary evidence citing MRE 602, authenticity, and best evidence.  But they were not raised on appeal so the court did not address them.  Trial defense counsel should not be dissuaded from objecting.  As a military appellate defense counsel I much prefer to have the objections – for obvious reasons.

New York doesn’t have a Code of rules of evidence; but they do follow the federal rule of evidence as to best evidence found in FRE 1002.  That rule is the same as found in Military Rule of Evidence 1002, which is applied in a court-martial, prosecuted under the UCMJ.  Even though the New York court applied waiver and did not reach the issue Prof. Miller goes on to give his analysis. Prof. Miller concludes that the objection, if made should have been sustained. The issue was who owned the money in the trust – a central issue according to Prof. Miller.  The point here being what is the expected testimony about the contents of a trust document, and how can a uninvolved witness testify to those contents without introducing the trust document.

The prosecution argued that the language in the trust document was irrelevant to proving ownership of the funds.  Prof. Miller finds that the prosecution could not use [Military] rule of evidence 1004(d) to avoid the issue.  Prof. Miller then argues that the prosecution could not use the “independent knowledge” exception found in the best evidence rule.  As Prof. Miller points out, it would be impossible for the witness to independently know who owned the funds without the best evidence of the trust and the trust documents.

I have at times used the best evidence rule to object to hearsay testimony about the contents of documents, and even audio-video recordings.  So for example it would be, in my view improper for a CID, NCIS, OSI, CGIS, agent to testify about the contents of an audio at which she was not present during the recording.  This would be different to testifying about the actual interview of an accused, which was also recorded, or the ubiquitous pretext phone call in military sexual assault cases.  In the first scenario there is a hearsay and best evidence objection, in the second the agent was present and heard the statements, thus has knowledge independent of the video to testify about.  Another related issue would be something such as an email or text message.  The law enforcement agent can’t testify about the contents unless the sender or recipient.  You need a different witness who will also testify to authenticity. I would suggest that authenticity is a big deal in regard to emails and texts because of the ease with which they can be spoofed or spoiled (in the context of spoliation of evidence).

In United States v. Jones, 26 M.J. 197, 201 (C.M.A. 1988), the court noted that the military rules of evidence have broadened the scope of the best evidence rule.  This is actually good for both sides, as the court in Jones essentially found in finding defense evidence of a videotape improperly excluded.

I found United States v. Hernandez, NMCCA 200501599, 2007 CCA LEXIS 183 (N-M Ct. Crim. App. June 12, 2007)(unpub.), an interesting read generally.

screenshot-by-nimbus has published a symposium – articles related to military justice, specifically sexual assault cases.  Both sides will find something in the articles. Of particular interest are two articles:  Major Seamone’s article about secondary affect on military justice practitioners from over exposure to sexual assault cases, and Colonel Schenk’s disagreement with the statistics and compilation of sexual assault statistics.

Major Evan R. SeamoneSex Crimes Litigation as Hazardous Duty: Practical Tools for Trauma-Exposed Prosecutors, Defense Counsel, and Paralegals, 11 Ohio St. J. Crim. L. 487 (2014).

Lisa M. SchenckInforming the Debate About Sexual Assault in the Military Services; Is the Department of Defense Its Own Worst Enemy?, 11 Ohio St. J. Crim. L. 579 (2014).

No this is not a comment on T. Scott McLeod’s book. Nor is it a comment on how to make providence work in your favor, although by the results it could be.

Oh, sorry.  Ya gotta read United States v. Stout, decided by ACCA on 25 July 2014.

The accused plead guilty to abusive sexual contact with a 14 year old, indecent liberty with a child, and possession of child porn, all violations of the UCMJ and prosecuted at court-martial.  The MJ gave him a BCD and 8.  ACCA determined the MJ erred in accepting any of the pleas and set aside the findings and sentence.

As you start to read the opinion you are initially thinking he’s minimizing – as did the court initially think.  You’ve been there right, as a military defense lawyer – tell the judge just enough, etc., etc., etc.

The court reminds of the very point about how an accused who minimizes during the providence inquiry doesn’t necessarily have an improvident plea.  The court said some single or minor inconsistency may be mere attempts by appellant to rationalize his actions, insufficient to invalidate the providence of the plea. Ultimately Stout’s statements went beyond minimization and set up substantial inconsistencies.  I might add that if the facts are as Stout and the stipulation say, this is not a case that should have been prosecuted.  But it’s 2014 and . . . (insert rant if you care to). The Army Court of Criminal Appeals (ACCA) cites to United States v. Goodman, 70 M.J. 396 (C.A.A.F. 2011); United States v. Rokey, 62 M.J. 516 (A. Ct. Crim. App. 1995), as authority.

Often an accused is reluctant to admit to a particular aspect of an offense. However, that should not vitiate his guilty plea if he recognizes that the evidence against him will prove the point, and he admits his guilt to the offense. We should not overlook human nature as we go about the business of justice. One aspect of human beings is that we rationalize our behavior and, although sometimes the rationalization is “inconsistent with the plea,” more often than not it is an effort by the accused to justify his misbehavior. A good trial judge can usually sort out the guilty plea and determine if an accused is so pleading because he has committed the offense charged.

United States v. Hall, 73 M.J. 645, 648 (A.F. Ct. Crim. App. 2014).

I always knew there was a reason – other than the case name – why we old timers refer to the Care inquiry (along with other names such as Suzuki credit, Allen credit, etc., etc., etc.). The Court of Appeals for the Armed Forces has over time ensured that before an accused can plead guilty to a UCMJ offense at court-martial, there must be a very careful inquiry of the facts and circumstances. When a military judge fails to conduct a careful inquiry which leads to inconsistency issues, the decision will be reviewed for an abuse of discretion.

I wonder where the TC was in all of this – not putting up a stout defense of the record apparently.  Message to TC, you have a duty to your client to protect us from an errant judge.  You need not feel intimidated and remain silent when the military judge asks you and the military defense counsel if you want any additional questions.

The military SVC programs have been ongoing for a little while.  So some signs of the good and bad are starting to show.  It is too early to tell if the issues are start-up issues or long term fixes, or cavitations or super-cavitations.  One aspect to be expected and not wholly rejected is alleged victims having more of a say in what happens in a case.  But how far can a victim and the SVC go in dictating what happens.

My good friend Dew_Process brought an Indiana professional discipline case to my attention and it is worth noting.  The issue for the prosecutor In re Flatt-Moore, No. 30S00-0911-DI-535 (Ind. January 12, 2012), was an allegation that she surrendered her discretion as a prosecutor during pretrial negotiations, to the victims money demands. The chief prosecutor had an established policy that they would not agree to a pretrial agreement unless both the police and victims agreed.

During a disciplinary hearing the IO found that the policy did not require or give the victim the right to dictate any restitution amount.  The IO found that the prosecutor had engaged in conduct prejudicial to the administration of justice.  That is found in Rule 8.4(d) of the Indiana rules of professionalism. The military Services follow the ABA Model Rules of professionalism, as published in Service regulations.  The ABA rule 8.4(d) is the same as that in Indiana. The Indiana court found the prosecutor had erred and violated the rule, and the issued a public opinion.

Interesting . . . The court agreed that there is largely unfettered discretion between the parties to negotiate an agreement so long as it does not violate the law, in not unconstitutional, and is truly voluntary.  And the court found that the agreement reached in the particular case was not unlawful and was approved. The issue was – for the prosecutor – that they gave all the power and negotiating decisions to the victim.  So how does that translate to a military sexual assault prosecution? You and your military defense lawyer are free to negotiate a pretrial agreement for just about anything.  The Supreme Court itself has stated that an accused can waive fundamental constitutional requirements of a trial.  United States v. Mezzaatto, 513 U.S. 196 (1995).

There are some matters that cannot be bargained away and the military appellate courts have been alert to unconscionable terms in a pretrial agreement.  For example, by executive order the President has declared that certain matters may not be bargained away.  R.C.M. 705(c)(1)(B).  An acceptable term is restitution.  As a military defense lawyer representing clients prosecuted under the UCMJ, I have negotiated such terms, including in sexual offense cases.

There is no “punishment” of restitution in the current UCMJ or Manual for Courts-Martial.  That doesn’t preclude creative lawyering.

The Indiana Supreme Court agreed that crime victims have and should have substantial input into the pretrial negotiation process, but they don’t and shouldn’t have is a veto.  To allow a veto usurps the prosecutor’s discretion to act on behalf of the state and the people. So if you and your military defense counsel are trying to negotiate a pretrial agreement and the prosecutor tells you that the CA would be willing but the victim says no, and they are bound by that no, mention this case to them. The interesting issue is whether you can make a pretrial motion on the issue – not sure about that.  Or do you take a deal and then bring it up with the military judge when she is doing the on the record inquiry as to the voluntariness of the deal.  For samples of prior appellate cases dealing with pretrial agreements, check here at the Court of Appeals for the Armed Forces (CAAF), or talk with your military defense lawyer.  It is far better to enter negotiations informed, rather than have a potential problem on appeal.

No. 14-5007/AF.  U.S. v. Steven S. MORITA.  CCA 37838.  Review granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT A RESERVIST CAN CREATE COURT-MARTIAL JURISDICTION BY FORGING ACTIVE DUTY ORDERS AND/OR INACTIVE-DUTY TRAINING ORDERS AND BY FINDING THAT COURT-MARTIAL JURISDICTION EXISTED FOR EACH 120-DAY PERIOD LISTED ON THE THREE APPLICATIONS FOR MPA MAN-DAY TOURS.

You can see an analysis of the case status here.