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.

Since United States v. Hills, and then United States v. Hukill, the appellate courts have been trying to sort out quite a few cases on remand.  Here is a list of the most recent CAAF actions.

No. 18-0087/AF. U.S. v. Jonathan P. Robertson. CCA 39061. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F.2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE UNCONSTITUTIONAL PROPENSITY INSTRUCTION IN THIS CASE WAS HARMLESS BEYOND A REASONABLE DOUBT.

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We have a new book worth the read to litigators facing child assault allegations with Shaken Baby Syndrome “evidence.”

Randy Papetti, The Forensic Unreliability of the Shaken Baby Syndrome:  The Book.

Arizona trial attorney Randy Papetti has brought nearly 20 years of experience and research to his valuable new analysis of shaken baby theory in the courtroom, The Forensic Unreliability of the Shaken Baby Syndrome,now shipping from Academic Forensic Pathology International (coupon for $50 off).

According to SCOTBlog:

The question of how to count the votes of the justices to decide who won a Supreme Court case – and on what ground – when the court is splintered has baffled lower courts for years. The rule laid out in Marks v. United States purports to answer that question: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by the Members who concurred in the judgment on the narrowest grounds.”

As a practical matter, the Marks rule has compounded rather than cured the confusion surrounding plurality precedent. Yet time after time when the Supreme Court has been confronted with an opportunity to clarify or abandon the Marks rule, it has failed to do so. More often than not, the court simply ignores the rule entirely, leaving lower courts in a hapless interpretative state each time the Supreme Court hands down a plurality decision. This could all change when the court decides Hughes v. United States, which is scheduled for argument on March 27.

Task Force Purple Harbor, a joint NCIS-led Task Force, stood up immediately following Marines United during March 2017, has identified six special courts-martial which have adjudicated cases related to the actual, attempted, or threatened nonconsensual distribution of intimate images. Of note, three of the cases summarized below occurred prior to the substantial measures undertaken by the Commandant of the Marine Corps since March 2017. These cases encompass different types of misconduct addressed under or through the UCMJ and are summarized below. Each case is evaluated independently, based on the unique facts and circumstances of that individual case.

13 March 2018, Special Courts-Martial Cases Involving Intimate Damages to Date.

Of interest to military justice practitioners is a new grant of certiorari at the U. S. Supreme Court today.  SCOTUSBlog reports:

Okechuku v. United States, No. 17-1130

Issues: Whether, and under what circumstances, the erroneous submission of a deliberate-ignorance instruction is harmless error.

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As we see frequently, texts and messages on cellphones can be important evidence in a case.  Most of the time the MCIO’s merely got the CW to provide a screenshot and otherwise cherry-pick what they want to take as evidence in the beginning.  Of course the cherry-picking is in favor of the CW and they ignore what might be Brady-plus material.  True, I’m starting to see more MCIO’s do a Cellbrite extraction, which is good.

United States v. Pham from the NMCCA teaches us that we need to be precise in what we ask for when we are seeking the CW’s phone.

Here, the CW “voluntarily provided her cell phone, a Samsung Galaxy S-IV, to NCIS for forensic examination. NCIS investigators performed a logical extraction of the phone and returned it to PI the same day. In response to a January 2016 defense discovery request for a copy of the physical extraction” the defense got “a logical extraction performed 11 months earlier.”

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A year ago an O-4 client was accused of various physical assaults on his son over an eight-year period.  He faced two charges with a total of 10 specifications.  Prior to trial we were able to identify very helpful information about the credibility of the allegations, despite there being medical evidence and prosecution expert testimony.  Prior to trial, one charge was dismissed and we proceeded to a jury trial on one charge and eight specifications.  The judge made a ruling close to the end of the prosecution case and the case was delayed several months while to prosecution appealed the judge’s ruling.  After the appeals court denied the prosecution appeal we continued the trial.  At the end of the prosecution case, the judge entered a finding of not guilty on three of the eight specifications.  At issue overall was whether the alleged acts happened, or if there were some minor acts that were exaggerated and the doctrine of parental discipline.

(A motion for a finding of not guilty is usually very easy for the prosecution to overcome because all they have to show is that there is some evidence upon which a rational jury can decide–a very low standard; and the judge isn’t allowed to make credibility evaluations.)

After all the evidence was submitted, instructions were given, and arguments were made–the members deliberated for about 3.5 hours.  They returned a finding of guilt as to one of the remaining five specifications.  After a sentencing hearing, the jury announced a sentence of “No Punishment.”  In the military, this is an approved “sentence” and effectively means that the consequences of a conviction alone are likely considered sufficient to hold the person accountable and promote rehabilitation.

 

We all know that military defense counsel is required to advise a client of potential sex offender registration issues since United States v. Miller, 63 M.J. 452, 458-59 (C.A.A.F. 2006).

With that in mind, United States v. Toth, No. 201700014 (NMCCA 28 February 2018) is worth the read.

In Toth, the appellant alleged he was misadvised in his guilty plea by his defense counsel that he would not have to register as a sex offender and that his counsel were ineffective for that reason.  At trial

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