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.

Trial and appellate lawyers often need to interpret what a statute means and how it applies to their case.

“There are some great Supreme Court cases on statutory interpretation, including the famous discussion regarding whether a tomato is a fruit.”

Says Prof. Tessa Dysart on Appellate Advocacy Blog.  She is referring to Nix v. Hedden, 149 U.S. 304 (1893), which held that “under customs law tomatoes counted as vegetables — and the importer had to keep paying the tariff.”  Her post is referring to State v. Barnes, decided 12 October 2017, by the Washington Supreme Court.

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On 12 October 2017, the CAAF granted petitions worthy of watching:

No. 17-0556/AR. U.S. v. Joseph R. Armstrong. CCA 20150424. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER ASSAULT CONSUMMATED BY A BATTERY IS A LESSER INCLUDED OFFENSE OF ABUSIVE SEXUAL CONTACT BY CAUSING BODILY HARM.

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At SimpleJustice blog (a blog worth following) there is a piece about Judge Kopf and a tweet which leads to a discussion of a prosecutors obligation to provide discovery to the defense.

Let me start with some basics and two cases that prosecutors and defense lawyers know (or should know) well. In Brady v. Maryland, the Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Evidence is “material” if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.

Relatedly, in Giglio v. United States, the Supreme Court held that prosecutors must disclose to the defense any “understanding or agreement as to a future prosecution” that the government has made with a material witness. That notion has been expanded to requiring the production of impeachment information of a material character. Specifically, this is thought of as information that either casts a substantial doubt upon the accuracy of any evidence—including witness testimony—the prosecutor intends to rely on to prove an element of any crime charged, or might have a significant bearing on the admissibility of prosecution evidence.

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It is common to obtain character and rehabilitation letters for a service-member at trial.  There is an art to getting and using good letters.

Rule 1, don’t have a letter (or testimony) in which the writer impeaches the verdict.  “This is out of character,” or something to that effect is much better and won’t draw criticism from the judge.

Here is a link to Simple Justice, a blog worth following, in which there is a discussion of support letters.

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Yes, it is.  In dissenting to the Coast Guard Court of Criminal Appeals majority opinion in United States v. Decker, the dissenting judge says:

This is a vexing case; the kind that sexual assault prevention training seeks to avoid. I agree with the majority’s resolution of Assignment of Error III, and I agree that the evidence presented in this case is legally sufficient to support findings of guilty to the specifications of Charge I and to Charge I. I would disapprove the findings of guilty to the specifications of Charge I and to Charge I, because I have a reasonable doubt that CG was incapable of consenting to the sexual act due to impairment by alcohol or any other substance; or unconscious, or otherwise unaware that the alleged sexual act was occurring. Considering all of the evidence presented, it is just as likely that CG was conscious, aware, and capable of consenting, but does not remember because of an alcohol-induced blackout.

Exactly!  I would suggest that 90% of military sexual assault cases involve both parties having drunk alcohol and claiming a lack of memory or ‘I was too drunk.’  The effects of an alcohol blackout on memory are well known and scientifically established.  What is also well known is that people in an alcohol blackout can still act and talk “normally” as perceived by others.  The dissenting judge’s discussion is a little more complex because of the way the offense was charged and the approach taken by the prosecution.

United States v. Campbell, decided by the Coast Guard Court of Criminal Appeals (9/17), presents a current look at United States v. Terlap and proper sentencing evidence.  The Appellant “that the military judge admitted improper evidence in aggravation and testimony contradictory to the stipulation of fact.”

During presentencing testimony, the military judge asked BI, “You never moved away or pushed away from the hand; it stopped voluntarily?” (R. at 129.) She answered, “I did push his hand away.” (Id.) During closing argument, defense counsel requested that the military judge not consider that testimony, as it conflicted with the stipulation of fact.

The CGCCA decided that the information did not contradict the stipulation of fact and was, likely, more of the facts and circumstances surrounding the offense to which the appellant pleaded guilty.

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Crowder’s next orders took him to Fort Yates, North Dakota, where the United States Army attempted to suppress the religious Ghost Dance movement. While stationed at Fort Yates, Crowder proved successful in his legal defense in three court-martial proceedings. His actions were noted by Army superiors and after being promoted to the rank of captain, Crowder was reassigned to the Judge Advocate Generals Corps in 1895.

Says a piece in the Neosho Daily about Enoch Crowder.

BG Crowder is well known to historians of military justice for the sometimes contentious but always entertaining Ansell – Crowder dispute on military justice and see here.

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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.

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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.)

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