Court-Martial Trial Practice Blog — Published by International Military Lawyer

And again

July 10, 2020 | The Law Office of Philip D. Cave

NMCCA has an unpublished opinion in United States v. Allen.

“We have written often to urge convening authorities and their staff judge advocates [SJAs] to pay scrupulous attention to detail throughout the post trial process. This case compels us to reiterate that urging yet again.” [1] Unfortunately, this is not a new problem in the military justice system. Citing 35 cases with erroneous Staff Judge Advocate Recommendations [SJARs] in a 15-month period, our sister court stated in United States v. Lindsey, almost 20 years ago:

This case presents the court with yet another incident in which an SJA has failed to provide complete and accurate information to the convening authority, as required by RCM 1106. The regularity of these post-trial processing errors is alarming and occurs in many jurisdictions. Most SJAR errors are the direct result of sloppiness and a lack of attention to detail. . . . Likewise, diligent trial defense counsel should identify and correct such errors whenever possible. These errors reflect poorly on our military justice system and on those individuals who implement that system. They should not occur!

Worth watching for

July 10, 2020 | The Law Office of Philip D. Cave

Over the transom comes the petition in Perez v. Colorado at the Supreme Court.

Whether, and to what extent, the Sixth and Fourteenth Amendments guarantee a criminal defendant the right to discover potentially exculpatory mental health records held by a private party, notwithstanding a state privilege law to the contrary.

The petition begins with,

Grazioplene redux

July 9, 2020 | The Law Office of Philip D. Cave

CNN reports,

See also, https://connectingvets.radio.com/articles/retired-army-general-james-grazioplene-stand-trial-rape-charges-army-dismissed

https://taskandpurpose.com/news/retired-army-general-rape-charges

Another contribution to the discussion of a commander’s authority

July 6, 2020 | The Law Office of Philip D. Cave

Here is a link to Dave Schlueter and Lisa Schenk’s White Paper

AMERICAN MILITARY JUSTICE: RETAINING THE COMMANDER’S AUTHORITY TO ENFORCE DISCIPLINE AND JUSTICE.

[https://www.court-martial-ucmj.com/white-paper-on-military-justice-reforms-2020-w-app/]

Worth the Read on Confessions

July 3, 2020 | The Law Office of Philip D. Cave

From CrimProf Blog, Editor: Kevin Cole, Univ. of San Diego School of Law

Friday, July 3, 2020

Motive to lie

June 20, 2020 | The Law Office of Philip D. Cave

We know that some people lie about being sexually assaulted.

We know that one of the reasons–motives–or as psychologists say “the secondary gain,” is to protect a marriage or relationship.

We know that some women are like men, they cheat on their spouse.

After the court is over

June 7, 2020 | The Law Office of Philip D. Cave

What happened after—trial, CCA review, and in the case below at CAAF. From time to time I find it interesting to follow habeas cases involving a military petitioner. So, here is Santucci v. Commandant, No. 19-3116-JWL (D.C. Kan. May 26, 2020).

The ACCA decision.

The CAAF decision without opinion, is at 2017 CAAF LEXIS 522 (C.A.A.F. May 4, 2017).

Worth the Read (WTR)–right to silence

June 4, 2020 | The Law Office of Philip D. Cave

Akorede Omotayo, The Right to Silence–or the Presumption of Guilt.

This is an interesting discussion from another country on something we are familiar with.

It will be recalled that the right to silence formerly comprises the privilege against self-incrimination and the right not to have adverse inferences drawn from his silence. Prior to the CJPOA, no evidential significance could be attached to an accused’s exercise of the right to silent, save when the accused and the victim were on even terms. However, theprovisions in the CJPOA, particularly ss 34-35 have sought to alter this principle to the extent that the question that this essay grapples with, is whether the right to silence,despite the changes, is still useful in protecting an accused’s supposed ‘constitutionalright’ of innocence, until proven guilty.

Article 69(d) in the toolbox

May 29, 2020 | The Law Office of Philip D. Cave

United States v. Roberts, ACCA, May 2020.

Occasionally a TJAG will refer a subjurisdictional sentence case to the CCA, which is what happened here.

Double jeopardy at CAAF

May 23, 2020 | The Law Office of Philip D. Cave

Colonel Rice was arrested for possession and distribution of CP. He was convicted in federal court and at court-martial. That is why we have a CAAF decision in United States v. Rice, __ M.J. ___ (C.A.A.F. May 21, 2020).

I think part of the takeaway here is that the Government can’t charge under Clause (1) or (2) of Article 134 where, if charged under Clause (3) would raise a double jeopardy dismissal. There’s more complexity to the case than that, but . . .

All agree, and we cannot ignore, that double jeopardy would prohibit the successive prosecution of the military charges if the Government had charged these offenses under clause 3 of Article 134, UCMJ, alleging a violation of 18 U.S.C. § 2252A.