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.

Whether or not a sentence is appropriate for the crime convicted of and the character of the person convicted is a frequent issue on appeal.  Less frequently there is an issue of sentence disparity between co-actors or co-accuseds.

The recent ACCA decision in United States v. Martinez (Sept. 2017), lays out the law fairly well on how to analyze and argue the issue.

In this case we hold appellant’s sentence was appropriate despite his assertion of sentence disparity with his coactor. While there is a not a bright-line test for when a sentence is highly disparate, the law is clear that sentence disparity is only one of many aspects of sentence appropriateness. We therefore hold that even if appellant’s sentence was highly disparate with his coactor’s sentence, appellant’s sentence was still appropriate for his crimes.

Under Article 62, UCMJ, the prosecution can appeal a military judge’s trial ruling under six circumstances.  The two most common are:

(A) An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification.

For example, a military judge dismisses a specification because the specification fails to state an offense.  That is what happened in United States v. Schloff.  The government appealed, the ACCA decided the appeal in favor of the government, CAAF agreed with the ACCA, and the Supreme Court declined to issue a writ of certiorari.  (We are now in the traditional Article 66, UCMJ, appeal before ACCA on the sole specification for which there was a conviction.)

The annual cost of detaining federal prisoners before trial and after sentencing is significantly higher than the cost of supervision in the community, according to figures compiled by the Administrative Office of the U.S. Courts.

The annual cost of detaining federal prisoners before trial and after sentencing is significantly higher than the cost of supervision in the community, according to figures compiled by the Administrative Office of the U.S. Courts.

In fiscal year 2016, detaining an offender before trial and then incarcerating him post-conviction was roughly eight times more costly than supervising an offender in the community. Placing an offender in a residential reentry center was about seven times more costly than supervision.

In British football, a player can commit a foul which is technical and the other team gets a free kick, and everyone keeps playing.  More serious fouls can result in a yellow card (two in a game and you are off the field) or a red card which means immediate removal from the field.  Well, that’s now the rule for suppression motions in the military.

Why?  On May 20, 2016, there was a change to Mil. R. Evid. 311.  Now the military judge has to decide if the application of the exclusionary rule in the case of an unlawful search or seizure unless the military judge finds no deterrent effect of exclusion against the interests to be protected.

In a new appellate case from the Navy-Marine Corps Court of Criminal Appeals, United States v. Mottino, No. 201700153, 2017 CCA LEXIS 495 (N-M. Ct. Crim. App. Jul. 27, 2017) (unpub.), a three-judge panel of the Navy-Marine Corps CCA granted a prosecution appeal and reversed the military judge’s ruling suppressing evidence.  They ruled that way because the military judge failed in her analysis and application of the law by not conducting the balancing test under Mil. R. Evid. 311(a)(3).  This was a government appeal of the military judge’s ruling to exclude evidence.  So the court remanded the case back to the trial judge so the parties and judge do get a do-over.

The military already has rules and regulations about membership in certain hate groups.  The tragic events at Charlottesville are likely to garner more attention to the issue of military personnel and hate groups.

From Task & Purpose.

James Alex Fields Jr., the 20-year-old Army basic training wash-out accused of running down counter-protesters demonstrating against hate groups in Charlottesville, Virginia, may not have been the only U.S. military veteran marching under the banner of white nationalism this weekend, Splinter reports.

As you know, Military Rule of Evidence 1102 provides that,

Amendments to the Federal Rules of Evidence – other than Articles III and V – will amend parallel provisions of the Military Rules of Evidence by operation of law 18 months after the effective date of such amendments, unless action to the contrary is taken by the President.

So, here is some relevant activity regarding possible changes to the federal rules of evidence.

There is increasing attention to the possibility that DNA “evidence” at the scene of an alleged crime is just too good and may implicate the innocent.

Touch-trace DNA is the issue.

Here is an interesting discussion that may help form an argument to exclude DNA evidence or address it with the fact-finder at trial.

A major piece in the New York Times magazine by Emily Bazelon dissects the conviction of Noura Jackson for the murder of her mother.

The accused’s DNA was excluded as a match for any of the three DNA profiles found at the scene and there was no physical evidence linking the accused to the killing.

The accused was convicted on circumstantial evidence.

Virginia Military and Veteran Legal Resource Guide

Attorney General Mark R. Herring has created the Virginia Military and Veteran Legal Resource Guide, a new tool to help Virginia servicemembers, military families, and veterans understand the unique legal protections, rights, and resources available to them under the law. Volunteer attorneys from the Office of Attorney General spent more than a year developing the new guide, which will be distributed in hard copy and electronically in conjunction with the Virginia Department of Veterans Services, veterans’ service organizations, and more.