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American Prosecutors’ Powers and Obligations  in the Era of Plea Bargaining.  Darryl K. Brown [University of Virginia School of Law].
I. Introduction
American prosecutors are generally understood to have a lot of power, and that power is often the subject of criticism. But whether American prosecutors’ power is problematic depends on the structure and operation of other components of the criminal justice system the code defining substantive offenses, the capacity and competency of police and investigative agencies, the law of sentencing, the typical mode of adjudication (trials or pleas), prison capacity, and funding levels for enforcement officials and courts.Prosecutors are empowered by some of these other actors and institutions, and they are constrained by others. Positive law gives prosecutors considerable power, especially by granting broad charging discretion, but it also limits that power in a couple of significant respects. Moreover, the mix of prosecutors’ powers, and potential for abuse of power,varies across American jurisdictions. Federal prosecutors are limited in important ways that state prosecutors are not, especially as to plea bargaining. Likewise, state prosecutors face constraints that their federal counterparts do not, particularly as to charging discretion. Whether prosecutor power is problematic depends on other components of the criminal justice system in which that power is exercised. In turn, the flaws of American criminal justice, in turn, arise as much from institutional arrangements that are ill-suited for particular prosecutorial powers as they do from those powers per se.

On Wednesday the CAAF granted:

No. 19-0411/AR. U.S. v. Norman L. Clark, Sr. CCA 20170023. 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 granted on the following issues:

I. DID THE MILITARY JUDGE ERR IN APPLYING R.C.M. 914?

No. 19-0376/MC. U.S. v. R. Bronson Watkins. CCA 201700246. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

  1. A CONFLICT OF INTEREST EXISTS WHERE THE INTERESTS OF AN ATTORNEY AND DEFENDANT DIVERGE ON A MATERIAL FACTUAL OR LEGAL ISSUE, OR A COURSE OF ACTION. THREATS BY REGIONAL TRIAL COUNSEL AND A REGIONAL TRIAL INVESTIGATOR TOWARDS CIVILIAN DEFENSE COUNSEL CREATED A CONFLICT OF INTEREST BETWEEN CIVILIAN COUNSEL AND APPELLANT. DID THE MILITARY JUDGE ERR IN DENYING CIVILIAN COUNSEL’S MOTION TO WITHDRAW?
  2. THE SIXTH AMENDMENT GUARANTEES AN ACCUSED THE RIGHT TO RETAIN COUNSEL OF HIS OWN CHOOSING. BEFORE TRIAL, AND AFTER HIS CIVILIAN COUNSEL MOVED TO WITHDRAW—CITING A PERCEIVED CONFLICT OF INTEREST—APPELLANT ASKED TO RELEASE HIS CIVILIAN COUNSEL AND HIRE A DIFFERENT COUNSEL. DID THE MILITARY JUDGE ERR BY DENYING THIS REQUEST?

If you, like me and some of my colleagues, have personal experiences from military clients who commit, get stopped in the act, or consider suicide while pending court-martial, you are facing a difficult challenge.

My first was a client I was representing on appeal who hung himself in the SHU at the USDB. Sadly, I’d gotten the Dubay judge’s findings and conclusion which lead me to think he was getting a new trial. He died not knowing that. I’d written to him telling him what I thought would be good news. The mail room allegedly refused to give him that letter which lead to a chain of events ending with him in the SHU.

We all have to be sensitive to clients in distress. Sometimes it’s hard to tell if the client is experiencing the “normal” stresses of being in trouble.

22 September is the anniversary of Nathan Hale being executed for spying against the British forces.

In New York City on September 22, 1776, Nathan Hale, a Connecticut schoolteacher and captain in the Continental Army, is executed by the British for spying.

A graduate of Yale University, Hale joined a Connecticut regiment in 1775 and served in the successful siege of British-occupied Boston. On September 10, 1776, he volunteered to cross behind British lines on Long Island to spy on the British in preparation for the Battle of Harlem Heights.

The Center for Military Readiness has this “report.”

Air Force Gen. John Hyten, nominated to become Vice Chairman of the Joint Chiefs of Staff, has become the face of injustice done to military personnel who encounter unproved allegations of sexual assault.  Accusations that cannot be substantiated are unjust and often career-ending, but they are not unusual.  Annual Pentagon reports indicate that they happen all the time.


According to figures published in annual reports of the Pentagon’s Sexual Assault Prevention & Response Office (SAPRO) since FY 2009, almost one-in-four completed cases involving sexual assault have been deemed “unsubstantiated” due to “insufficient evidence” or “allegations unfounded.”

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