Here is the view of the military defense lawyers at Cave & Freeburg, LLP, on how the preemption doctrine can be applied at court-martial.

United States v. Marschalek, No. ACM S32776 (A.F. Ct. Crim. App. Apr. 17, 2026) (unpublished), offers a useful reminder that charging decisions matter as much on appeal as they do at trial. The Air Force Court of Criminal Appeals held that the Government could not use Article 134 to plead around Article 120c when the conduct at issue was, in substance, indecent exposure. The court set aside the finding and sentence because Article 120c covered the field and Article 134 could not serve as a watered-down substitute.

For trial counsel, defense counsel, and appellate counsel alike, Marschalek matters because it ties preemption to the Government’s burden of proof. The decision warns that once Congress creates a specific punitive article for a defined kind of sexual misconduct, the Government cannot simply relabel the same conduct under Article 134 and delete a vital element. That point becomes especially important in cases involving guilty pleas, plea negotiations, and exceptions and substitutions to specifications.

The Air Force Court of Criminal Appeals’ decision in United States v. Doolin is a useful reminder that a guilty plea does not end the litigation. In military practice, the judge must conduct a Care inquiry—named for United States v. Care—to ensure that the plea is knowing, voluntary, and supported by an adequate factual basis. The judge must explain the elements, define the key legal terms, and obtain admissions from the accused that establish guilt in law and in fact. If the accused says something inconsistent with guilt, the military judge must resolve the inconsistency or reject the plea.

Doolin involved a guilty plea to attempted sexual abuse of a minor by indecent language. The accused communicated online with someone he believed was a 14-year-old girl, who was in fact an undercover law enforcement agent. Pursuant to a plea agreement, he pleaded guilty before a military judge alone, elected trial by judge alone, and entered into a detailed stipulation of fact. The stipulation was substantial: eighty-eight pages, a disc, and multiple attachments that memorialized the communications.

What a Care inquiry is

It happens. The defense becomes aware of evidence that may be of assistance either as a Brady disclosure, under the broad discovery rules, or for investigative purposes–but the Government claims it is lost. By negligence? Deliberately? What can be done?

Depending on the nature of the lost or destroyed evidence, you can ask for a mistrial or dismissal. This is especially important if you can prove the evidence would be substantially helpful in presenting your case or contradicting the prosecution’s case. However, before that, the military judge must use less severe remedies if possible. One remedy is to exclude testimony related to that evidence or, more likely, instruct the members (jury) that they may draw an adverse inference that the lost or destroyed evidence would have information favorable to the defense. Let’s look at that more closely. The military defense lawyers at Cave & Freeburg write from experience in these situations at trial and on appeal.

The military judge may draw, or permit the members to draw, an adverse inference when the government loses, destroys, or suppresses evidence that should have been available to the defense. The Court of Appeals for the Armed Forces has recognized that an adverse inference instruction is an appropriate curative measure for improper destruction of evidence. United States v. Ellis, 57 M.J. 375 (C.A.A.F. 2002). The remedy fits especially well where the missing evidence would have helped the defense test the government’s proof or present an alternative explanation for the charged conduct.

In In re LB, the Air Force Court of Criminal Appeals addressed an important discovery issue in a pending court-martial: when may a military judge allow the defense to seek limited information about a complaining witness’s medical or mental health treatment? The court denied the victim’s request for emergency relief and allowed the military judge’s discovery order to remain in place. For any military defense counsel or military defense lawyer handling sexual assault litigation, the opinion offers a useful look at how military courts are working through the boundaries of mental health privilege and defense discovery.

The case arose from the court-martial of Technical Sergeant Irvin Bryant, Jr., who faced charges under the Uniform Code of Military Justice (UCMJ), including offenses under Articles 120 and 128b. The petitioner, identified as LB, was the named victim in each specification. LB asked the Air Force appellate court to block the military judge’s order before the case moved further toward trial.

The central issue involved what the defense could learn about LB’s mental health history. Earlier in the case, the defense sought access to certain mental health records. The military judge refused to order production of privileged communications between LB and mental health providers. Later, however, the judge ruled that the defense could seek limited non-privileged information, often called Mellette material. Under United States v. Mellette, diagnoses, treatments, and similar information in medical records do not automatically receive the same privilege protection as confidential communications with a psychotherapist. That distinction can matter a great deal to a military defense lawyer preparing to challenge credibility, evaluate prior statements, or build a theory of defense.

United States v. Navarro  ·  ARMY 20250171  ·  Army Court of Criminal Appeals  ·  March 30, 2026

What Happened

An Army Specialist pleaded guilty to possessing child pornography under Article 134 of the UCMJ. His defense lawyer negotiated a plea deal that kept him out of prison entirely. The only punishment: a bad-conduct discharge. No confinement. No additional penalties. For this type of charge, that outcome stands out as remarkably favorable.