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.

At the 2015 Innocence Summit, the nation’s leading prosecutors, researchers, defense attorneys, citizen activists, exonerees, and others will come together to debate how the Innocence Movement can overcome old obstacles and achieve new successes.

Theme: Forging Best Practices for Innocence Reform

Why: Because our criminal justice system needs to apply evidence-based best practices in order to stop wrongful convictions and restore the presumption of innocence

Where: Crowne Plaza, Washington National Airport (Arrive a couple days early or stay for the long weekend, you’ll get to take advantage of the Summit’s deeply discounted room rates. Advance look HERE.)

When: June 12-13, Friday morning through Saturday afternoon

What: Keynote presentations, panel discussions, workshops, networking opportunities, and a Friday evening banquet. Plus, limitless opportunities to enjoy the sights of our nation’s Capitol!

Registration opens: February 2, 2015

Please see the NIMJ announcement of the Barry and Jenkins writing awards at this link.

Kevin J. Barry Award for Excellence in Military Legal Studies.

This award recognizes an outstanding article published in an academic or professional journal, and honors the memory of an outstanding scholar and peerless advocate of reform: Kevin J. Barry, a founder and longtime director of NIMJ.

John S. Jenkins Award for Student Excellence in Military Legal Studies.

This award will be presented to the best nominated paper written by a law student on a military law topic.  It will be awarded to student papers written during the period 15 July 2013 to 15 July 2015.  This award honors a leader of the military bar who was a co-founder of NIMJ, was the inaugural chair of its Advisory Board, and was a Director of NIMJ for many years.

Navy Times recently interviewed the Director of NCIS.  Here is a question I found interesting and thought I’d share.

Q. There have been a number of recent cases in which inspector general investigations concluded NCIS agents weren’t following procedures. What are you doing to improve that?

A. I think if we have needed to we have tightened up quite a bit. I will give you an example: Some of the things we were cited for were actually minor deficiencies or violations of our own internal policies.

So there was a case where there was a bunch of sailors in a barracks shower. And one sailor bumped into another sailor in the shower. A few days later one of his buddies said he should report that as a sexual assault. So it gets reported. We get the referral a month after the incident, and what do we have for evidence? We have an empty barracks shower and we have no witnesses to interview. We have no suspect to interview. Part of our standard process is to photograph the crime scene and sketch the crime scene. Well, it’s a barracks shower. No one photographed the crime scene. But that gets reported as a deficiency in our investigative process.

Well, it is an investigation that clearly doesn’t have any merit that is never going to be prosecutable at any venue. In that case you can see where agents will think, well, I am not going to go through all the steps because there is really nothing here for me to do. So what we have encouraged is, because of the additional scrutiny from IG and others, is that it doesn’t make any difference; follow every step of our protocol regardless of the case. Do it anyway so at the very least we can say there is no prospective merit here — we did everything we were supposed to do.

You likely have clients as I do who are waiting months for an investigation to be completed.  Part of the answer maybe the lack of discretion afforded trained investigators to decide what effort needs to be put into a case.  Triaging is not allowed.

On 29 August 2014, the Inspector General, U.S. Department of Defense issue a report, Evaluation of DoD Compliance with the Sex Offender Registration and Notification Act.

In connection with the U.S. sex offender registry’s, there is now quite a robust amount of research that seems to label the idea as ineffective.  The worst of the worst are likely to commit similar crimes whether or not they are on a registry and under watch.  Fairly regular news reports provide anecdotal support for such a conclusion.  As for the rest, statistics show that sex offenders have a much lower recidivism rate than non-sex offenders.  In addition, there is a question about the basic effectiveness of such laws; as reported in Science Daily, and The Economist, and in a study conducted by the U.S. Department of Justice, National Criminal Justice Reference Service, in a limited study of South Carolina’s laws.  The criticisms do not suggest no value to such registry’s, rather a more precise and reasoned approach.  You might read a pro-con discussion about sex offender registration policy sponsored by the Federalist Society.  Science Daily notes,

“As a share of its population, America registers more than four times as many people as Britain, which is unusually harsh on sex offenders. America’s registers keep swelling, not least because in 17 states, registration is for life.”

Thanks the GMJR for a ping alert.

“Adolescents, more than adults, tend to discount the future and to afford greater weight to the short-term consequences of decisions.”

Kim Taylor-Thompson, States of Mind/States of Development, 14 STAN. L. & POL’Y REV. 143, 154 (2003).

How often do I think of this principle (cited to in The Virginia Lawyer, and United States v. Berry), when a client wants to upgrade their discharge.

From DefenseNews:  Senate Armed Services Committee Chairman Sen. Carl Levin, D-Mich., told reporters on Tuesday that Senate and House Armed Services Committee leaders want to finish the compromise version of the 2015 National Defense Authorization Act (NDAA) by Friday. There will likely be no floor amendments, Levin said, largely because there are few remaining days in the legislative calendar.

I came across a piece entitled, “We Love the Pentagon’s ‘Encylopedia of Ethical Failure’” which is on medium.com.

The piece notes what we have all seen that the last few years have seen many ethical challenges for the military.  Likely we know more about the specific cases because of The Internet and Google.

Individually, the cases are all bad news. The good news is that authorities often catch and punish government cheats, thieves and frauds. Penalties for ripping off the American taxpayer range from huge fines to hard time in prison.

The piece links to and has excerpts from the Encyclopedia, with a comment that, “It might be the most light-hearted official report anyone’s ever written about criminals.”

The encyclopedia is put out by the DoD Standards of Conduct Office as a learning and teaching tool.  For us, it is both interesting and entertaining to read, but it some ways a research tool for comparison purposes, “According to the Standards of Conduct official I spoke with, the encyclopedia has been a great success. Other government agencies even like it. “They like the realistic examples,” he said. “It also helps address the concern that people hear about complaints … but they don’t often hear the final result.”

It’s true—one particularly useful aspect of The Encyclopedia of Ethical Failure is its description of perpetrators’ punishments.

The Encyclopedia of Ethical Failures is approaching 200 pages. Two-hundred aggravating and amusing pages. The office most recently updated the book in October. The big update usually comes in July.

You might take a look if you need to lighten the day.

I was reading Unwashed Advocate today, and thought I would repeat his good advice on how best to make a motion or objection at trial.  I have a couple of additional thoughts, but otherwise his is good advice.  He says, and I quote extensively:

However, when it comes to making a motion, or stating an objection, I’ve always followed this format.

A. Object/Make Motion

B. State Reason

PDC:  Your reason for an objection should be short – preferably giving only the rule number, especially if this is happening in front of members.

C. Listen to other side

PDC: Agreed.  But it is especially important if the other side starts to give more detail and argument about why the objection should be overruled in front of the members.  If that happens ask for the members to be excused while you take this up in a 39(a) session.  Sure, the judge won’t like the up-and-out, but it’s your client on trial.  I read any number of records of trial where the trial counsel and judge engage, sometimes in great detail about the evidence and objection – all in front of the members.  What a way to educate the members!  And then how effective is it to give a curative or limiting instruction – Not!

D. Clarify [your reasons] in light of what other side said.

E. Go back and forth until judge directs a halt.

PDC:  At this point you should be focused on what the trial counsel is arguing.  Listen to the judge’s questions and respond to them.  Sometimes you can hear the judge tell you how to argue your objection, or give you a key to persuading her to rule in your favor.  I had a good friend and judge many years ago who would rule, “not on that basis -denied.”  Once I got to know his ways I realized that sometimes he was telling you there was a basis you just hadn’t raised it – yet.

F. Listen to ruling from judge.

G1: If the ruling is in your favor. SHUT UP (emphasis added).

G2: If the ruling is not in your favor, ask for reconsideration [or to add to the record] based on clearly articulated factors and state any points that seem necessary to complete and clarify the appellate record. Done and done.

PDC:  I would be careful here because of Rule F., and what follows – you have to make a record, but . . .

At this point, I view any further discussion as unnecessary and more likely to create ill-will toward my client. Therefore, I stop. Some want to push further than G2, turning the disagreement with the opposing side into an argument with the judge. I fail to see where this could, in any stretch, be calculated to bring a favorable result to the client. All it creates is bad blood in the courtroom, and the lawyer loses credibility with those who matter the most. Though, I’m sure those who use this technique have a reason for doing so.

PDC:  I have seen young trial counsel do this too often.  They are basically saying “judge you are wrong and we are right.”  Not an effective practice for the particular objection, or future events.  Some judges can get shirty about being told they are wrong – even if they are wrong.