More Than 40 Years Dedicated Exclusively to Military Law | Learn More About Philip D. Cave

I was doing some reading of judicial qualifications, especially for appointment to CAAF.

On a side note, it appears that 12 U. S. Supreme Court justices did not take the bar after having first graduated law school and receiving a law degree—notably Justice Robert H. Jackson, of Nuremberg fame, is one; he combined some law school classes with reading the law. Another was Justice Joseph Story, of storied fame for some of the court’s most consequential decisions and his Commentaries on the Constitution of the United States.

As we know, the practice before say 1878 was for aspiring lawyers to “read the law” and through that process becoming recommended and admitted to the bar. The ABA was founded in 1878 and since then has inserted itself into all parts of the education and approval of lawyers either directly or through influence.

The Appellate Advocacy Blog brings, Tips for Delivering A Persuasive Closing Statement, by Adam Lamparello

Closing argument is among the most critical parts of a trial, as it provides attorneys with one final opportunity to persuade the jury to rule in their favor. Below are tips to maximize the persuasive value of a closing argument.

Begin with a strong introduction. As with opening statements, the best closing statements begin with a powerful – and memorable – introduction. And the best closing statements repeat, in the introduction, the theme that was used in the opening statement, remind the jury of the strongest facts supporting a verdict for your client, and reinforce the weakest aspects of your adversary’s case.

I recently read the first opinion issued by the then Court of Military Appeals (CMA). But first,

I believe it is prudent to sound a note of caution to the field about the applicability of this decision to future cases with different facts.

United States v. Norwood, 80 M.J. ___ (C.A.A.F. 2021) (Ohlson, J., concurring in the result).

I believe it is prudent to sound a note of caution to the field about the applicability of this decision to future cases with different facts.

United States v. Norwood, 80 M.J. ___ (C.A.A.F. 2021) (Ohlson, J., concurring in the result).

This is comment appropriately applied to most appellate decisions. I tend to look at many appellate decisions from a different perspective than most. As I read appellate decisions I think of them as you shouldn’t do this, but if you do you will err or not. Or just because the court affirmed the prosecution’s conduct doesn’t mean that it was proper conduct or license to do it again.

We all have been in the position of filing motions in-limine to admit or object to the admission of evidence. I do this frequently for its efficiency and help in forming my case as we advance. There are times when counsel, usually trial counsel, wants to preadmit evidence.

There are times I do not object to preadmission and times I object. A primary reason to preadmit evidence is for use in opening statements. Here is my thought on why counsel might object to preadmission.

The military judge erred in pre-admitting Prosecution Exhibit 1, photos alleged to have been of the complaining witness at an earlier age, and Appellant was prejudiced when trial counsel published the exhibit to the members during opening statement. The military judge put his imprimatur on the evidence before the defense had the opportunity to cross-examine the witness in front of the fact-finder. Later examination does not avoid the combined effect of the military judge’s imprimatur, the primacy and recency effect (which we are all trained about); and the human tendency to solidify in an opinion formed early on (cognitive dissonance).

Equal Supreme Court Access for Military Personnel: An Overdue Reform, 131 Yale L.J. Forum ___ (2021) (forthcoming), by Prof. Eugene R Fidell, Prof. Brenner M. Fissell, Cdr. (Ret). Philip D. Cave, is available here on SSRN. Abstract:

While one might think that every criminal defendant in the United States has the opportunity to eventually appeal their conviction to the Supreme Court, Congress has largely blocked the path of perhaps the most deserving category of defendants: military personnel convicted at courts-martial. This is because under the 1983 law granting certiorari jurisdiction over military cases, only court-martial convictions that are granted review by the nation’s highest military court may be appealed; those in which that court denies review are excluded from access to the Supreme Court.

In this Article, we argue that this jurisdictional limitation is both bad policy and unconstitutional for several reasons, and that Congress should remove it. Whether or not a court would find the limitation unconstitutional is not the point. Congress has an independent obligation to avoid violating constitutional norms. By delegating to an executive branch court—the United States Court of Appeals for the Armed Forces (CAAF)—the power to determine the Supreme Court’s jurisdiction over court-martial appeals, Congress violated the separation of powers. In carving out a comparatively small class of cases as non-reviewable for the ostensible purpose of reducing the Supreme Court’s workload, Congress acted irrationally and violated equal protection. By making this category nearly coterminous with the universe of military cases (since almost all are denied review by CAAF), and conferring on that court a vague and non-reviewable standard for granting review, Congress violated the Exceptions Clause. Finally, by providing for Supreme Court jurisdiction over cases in which a Judge Advocate General certifies a case for review, but not over those in which an accused seeks review, the system unfairly provides asymmetric access to justice in favor of the government.

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“Racism has long corrupted American military justice – famously exemplified by the 1917 Houston riots, which resulted in the Army’s summary execution of 19 African American soldiers after sham trials. In 2019, the Government Accountability Office found that in the Army, Navy, and Marine Corps, black service members “were about twice as likely as white servicemembers to be tried in general and special courts-martial.”

Such disparities still exist within the American military’s criminal justice and disciplinary systems, and demand action.

This is precisely why the National Institute of Military Justice, HOFSTRA University – Maurice A. Deane School of Law, and Southwestern Law School’s Armed Forces Law Society are co-hosting this important event.

Prof. Colin Miller tells us that,

Similar to its federal counterpartPennsylvania Rule of Evidence 806 states that

When a hearsay statement has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

A Reid reminder.

Military.com reports U.S. Charges Son in Civilian Navy Staffer’s Killing in Bahrain. Bahrain declined prosecution; federal marshalls will bring him to the U.S. for prosecution in federal district court. Were this the early 1950’s it is possible he would be facing court-martial—that is until Reid v. Covert. In Reid v. Covert, 354 U.S. 1 (1956), the Supreme Court decided that it was unconstitutional to try at court-martial civilians accompanying the force overseas. Many years later, there had been a clamor about “dependents” and contractors escaping responsibility for crimes committed while accompanying their sponsor overseas.

A change to Article 2(a), UCMJ, was intended to fill in some of the blanks by extending jurisdiction to “In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.”

Similar to its federal counterpartsection 90.404(2)(a) of the Florida Statutes states that

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

Typically, these rules are used by prosecutors to prove a criminal defendant’s motive, opportunity, etc. But, at the federal level, defendants can use “reverse 404(b)” evidence to show, for instance, that someone else had a motive to commit the crime charged. And, as the recent opinion of the District Court of Appeal of Florida, Third District, in Posey v. State, 2021 WL 115437 (Fla.App.3rd 2021), makes clear, Florida similarly allows for “reverse Williams” evidence.

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