Court-Martial Trial Practice Blog — Published by International Military Lawyer

Unfounded Sex Assault Charges Trending Up in DoD Reports

September 17, 2019 | The Law Office of Philip D. Cave

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.”

A view from across the pond

September 10, 2019 | The Law Office of Philip D. Cave

Corteen & Stelle, A Criminal Injustice System? Sex Offender Suspects and Defendants. 39 LIVERPOOL L. REV. 265 (2018).

Abstract

The purpose of this paper is to open up a discussion regarding the potential shift from the presumption of innocence to a presumption of guilt regarding those suspected of or charged with sexual offending. It is acknowledged that further investigation is needed and it is hoped that this discussion is one of many. The crux of this paper therefore is that sex offender suspects and defendants potentially find themselves in a criminal injustice system. Whilst the focus is predominantly on ‘victims’ (usually female) and people suspected or charged with sexual offending (usually male) within the criminal justice system in England and Wales the concerns articulated here are not confined to this context. For example such concerns are echoed in relation to the potential injustices occurring on American campuses. This demonstrates that this is a domestic and international situation and a situation that extends beyond the criminal justice system. We argue that what is occurring at home and abroad has to be contextualised with regard to public, media and social attitudes and approaches to ‘victims’, suspects, defendants, sex, sexual consent, sexual

Dances of Justice: Tango and Rumba in Comparative Criminal Procedure

September 8, 2019 | The Law Office of Philip D. Cave

Elisabetta Grande (2009) “Dances of Justice: Tango and Rumba in Comparative Criminal Procedure,”

Global Jurist: Vol. 9: Iss. 4 (Frontiers), Article 6.

Available at: http://www.bepress.com/gj/vol9/iss4/art6

Alcohol related decisions?

September 6, 2019 | The Law Office of Philip D. Cave

Tales of the Tipsy Coachman: Being Right for the Wrong Reason – The Tipsy Coachman is Alive and Well and Living in Florida

I object, so let’s discuss that with the members

August 26, 2019 | The Law Office of Philip D. Cave

Ooops.

When you object to something you are asking that the members not hear a piece of testimony or see a piece of evidence–right? Right?

So why then do you let the Trial Counsel (or defense counsel) discuss that with the military judge in front of the members? I see this on a regular basis as I read records of trial–I’m reading one now where there was three pages worth of discussion in front of the members. Yes it’s a hassle to excuse the members and the witness while you have a discussion about admissibility.

Note of SOR

August 18, 2019 | The Law Office of Philip D. Cave

From Prof. Doug Berman’s excellent Sentencing Law & Policy.

Four+ years ago as noted in this post, the US Supreme Court issued a short per curiam summary reversals in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), in which the Court clarified and confirmed that the Fourth Amendment is applicable to sex offender monitoring. That case was remanded back to the state courts, and late last week there was a major ruling by the Supreme Court of North Carolina in North Carolina v. Grady, No. 179A14-3 (N.C. Aug 16, 2019) (available here). This split ruling establishes that persons other than Torrey Grady will benefit from the application of the Fourth Amendment in this setting.

Fourth Amendment happenings

August 18, 2019 | The Law Office of Philip D. Cave

A couple of interesting items from John Wesley Hall’s excellent Fourth Amendment blog.

Without something to go on, the court declines to ascribe a supposed error in an address as a mere typo. Moreover, the affidavit fails to provide any nexus to defendant and the place to be searched, and the good faith exception is inapplicable. The court even finds the issuing judge failed to perform his or her judicial function in evaluating the affidavit. Andrews v. District of Columbia, 2019 D.C. App. LEXIS 336 (Aug. 15, 2019):

(1) The probable cause here was thin, and it was based on a CI’s credibility. The officer omitted important information to the CI’s credibility. This entitles him to at least a Franks hearing on remand. (2) A photograph of the motel room during the search shows the time as 25 minutes before the search warrant was issued. Whether the motel room clock was correct or not is a matter of speculation in light of the testimony, which the court credits instead. [What person has stayed in a hotel room where the clock was always correct? Nobody.] United States v. Clark, 2019 U.S. App. LEXIS 24332 (7th Cir. Aug. 15, 2019).

Worth-the-Read

August 18, 2019 | The Law Office of Philip D. Cave

Rossmo, Kim and Pollock, Joycelyn, Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective (June 28, 2019). Northeastern University Law Review, Vol. 11, No. 2, 2019. Available at SSRN: https://ssrn.com/abstract=3413922.

Tokson, Matthew J., The Emerging Principles of Fourth Amendment Privacy (July 23, 2019). George Washington Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3425321

Wexler, Rebecca, Evidence in the Age of Privacy: Access to Data in the Criminal Justice System (July 29, 2019). Available at SSRN: https://ssrn.com/abstract=3428607 or http://dx.doi.org/10.2139/ssrn.3428607

Upon taking command

July 31, 2019 | The Law Office of Philip D. Cave

Going through some old files I came across the

Excerpts from a letter which the Powell Committee recommended The Judge Advocate General of the Army send to officers newly appointed as general court-martial convening authorities. (Committee on the Uniform Code of Military Justice, Good Order and Discipline in the Army: Report to Honorable Wilber M. Bruckner, Secretary to the Army, 17–21 (18 Jan 1960)).

Should the TJAGs also send a “letter to self?”

Don Rehkopf as a reminder to defense counsel

July 24, 2019 | The Law Office of Philip D. Cave

Here is something from good friend Don Rehkopf as a reminder to defense counsel.

1) For anyone representing a client with Art. 120, offenses that will trigger a Dismissal or DD upon conviction; or

2) Anyone representing a client where there may be a chance of being sentenced to a Dismissal or DD;