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.

Military personnel interviewed as a suspect by a MCIO are never told they are under arrest, but that’s the effect of the MCIO taking fingerprints, “mug-shots” and DNA.

Once “arrested” you become titled and that information goes into the federal data base.

Same if you are prosecuted, although the MCIO is supposed to update the information about you and your status.

In United States v. Kelly, __ M.J. __, No.17-0559/AR the CAAF decides that a court of criminal appeals has the power to disapprove a mandatory minimum punitive discharge, reversing the published en banc (but non-unanimous) decision of the Army CCA.

While Congress changed the law to impose a mandatory dishonorable discharge in some cases, they did not change Article 66(c), UCMJ under which a CCA acts to determine whether or not the findings and sentence of a court-martial should be approved.  With this in mind, CAAF decides in favor of the CCA’s power to disapprove a DD.

Military personnel are told to believe the victim and consider the accused guilty unless, the quote from a former Air Force TJAG, there’s a silver bullet showing innocence.  But what if the silver bullet isn’t available.

Here the state trooper was saved by his bodycam from a false allegation.

An attorney is apologizing for spreading allegations that a Texas Department of Public Safety trooper sexually assaulted a woman during a traffic stop and arrest in North Texas. The apology came hours after DPS released two hours of the trooper’s body camera video.

Spilman reports that:  CAAF decided the Navy case of United States v. Andrews, __ M.J. __, No.17-0480/NA (CAAFlog case page) (link to slip op.), on Tuesday, May 22, 2018. Rejecting the Navy-Marine Corps Appellate Government Division’s argument that the failure to object to improper argument at trial waives any error on appeal, CAAF concludes that any improper argument by the prosecution in this particular case was harmless and affirms the decision of the Navy-Marine Corps CCA.  The report highlights a portion of the opinion:

Despite our finding of no prejudice, the prosecutorial conduct in this case raises concerns we feel compelled to address. We remind all military judges of their “sua sponte duty to insure [sic] that an accused receives a fair trial.” United States v. Watt, 50 M.J. 102, 105 (C.A.A.F. 1999) (internal quotation marks omitted) (citation omitted); see also United States v. Knickerbocker, 2 M.J. 128, 129 (C.M.A. 1977) (“At the very least, the judge should have interrupted the trial counsel before he ran the full course of his impermissible argument.”). Military judges are neither “mere figurehead[s]” nor are they “umpire[s] in a contest between the Government and accused.” Watt, 50 M.J. at 105 (internal quotation marks omitted) (quoting United States v. Kimble, 23 C.M.A. 251, 253, 49 C.M.R. 384, 386 (1974)). Nor can a defense counsel sit like a bump on a log—he or she owes a duty to the client to object to improper arguments early and often. See DeFreitas v. State, 701 So.2d 593, 602 (Fla. Dist. Ct. App. 1997) (explaining the court is unlikely to “excuse counsel for his failure” to object because a defense counsel “has the duty to remain alert to such things in fulfilling his responsibility to see that his client receives a fair trial”). Failure to do so may give rise to meritorious ineffective assistance of counsel claims. See F. Emmit Fitzpatrick & NiaLena Caravasos, Ineffective Assistance of Counsel, 4 Rich. J.L. & Pub. Int., 67, 81 (2000) (listing federal cases in which the circuit courts found ineffective assistance of counsel for failure to object (citing Williams v. Washington, 59 F.3d 673, 684 (7th Cir. 1995); Henry v. Scully, 78 F.3d 51, 52–53 (2d Cir. 1996); Bolander v. Iowa, 978 F.2d 1079, 1083–84 (8th Cir. 1992); Crotts v. Smith, 73 F.3d 861, 867 (9th Cir. 1996); Atkins v. Attorney General of Alabama, 932 F.2d 1430, 1432 (11th Cir. 1991); and Mason v. Scully, 16 F.3d 38, 45 (2d Cir. 1994))). Finally, we remind trial counsel they are:

representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, [they are] in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer…. It is as much [their] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

On July 11, 2017 (79 FR 59938-59959), the JSC published a Notice of Proposed Amendments concerning procedure and evidence applicable in trials by court-martial, non-judicial punishment proceedings, and the punitive articles of the Uniform Code of Military Justice as amended by the Military Justice Act of 2016, Division E of the National Defense Authorization Act for Fiscal Year 2017 and follow-on changes made by the National Defense Authorization Act for Fiscal Year 2018.

Comments and materials received from the public are available under Docket ID Number DOD-2017-OS-0032, and at the following link https://www.regulations.gov/ docket? D= DOD-2017-OS-0032.

The JSC considered each public comment and made some modifications to the proposed amendments accordingly.

ACCA is back online to the public.

On 27 March the court decided United States v. Ellis, a case in which:

Appellant asserts that the government’s failure to provide a copy of the accident report was a disclosure violation entitling him to relief on appeal. Appellant assigns both constitutional and non-constitutional error. We address both. In so doing, we address when a law enforcement investigation is separate from the investigation into the charged offense under Brady v. United States, 397 U.S. 742 (1970). We also discuss what constitutes a “specific request” for disclosure under Rule for Courts-Martial [R.C.M.] 701(a), triggering a heightened standard of review.

The NMCCA decided United States v. Kmiecik on 17 May 2018.

Kmiecik challenges the military judge’s decision to admit “a signed acknowledgment from the appellant that he understood the Marine Corps’ policy concerning the illegal use of drugs[,]” during sentencing.

For trial counsel and judges, and defense counsel.

Captain Milott has an interesting article about the use and interpretation of emojis and emoticons in criminal trials when they are part of a text, email, or some other social media message.  Many sexual assault courts-martial involve texts and emails between the complaining witness and a suspect–is there a damaging admission, a confession, or something helpful in defense?

Check out 44(3) The Reporter 61 (2017).

Expressing emotion in our digital lives presents unique challenges. Articulating joy, sadness, or laughter in non-verbal, non-word characters is a learned skill which can be interpreted differently than the author intended. Despite the danger of misinterpretation inherent in the use of emojis and emoticons, their popularity has increased since their online debut in the early 1980s.

Lagano, et al, The Air Force SVC Program: The First Five Years, 44(3) The Reporter 31 (2017).

We begin by examining the creation of the SVC program within the Air Force, the expansion of victims’ counsel programs throughout the Department of Defense (DoD), and the growing list of victims’ rights.  In the second part of this article, we examine the current state of the law and regulations governing the SVC program, highlighting the role of the SVC, and the responsibilities and obligations of the base legal office and others who interact with victims and SVCs. Additionally, we examine the most recent development in the area of SVC representation–Air Force Guidance Memorandum (AFGM) 2016-01 to AFI 51-504.

The AFGM states the general scope.