Court-Martial Trial Practice

The Case in Brief

The Navy-Marine Corps Court of Criminal Appeals decided United States v. Durbin, No. 202400333, on June 2, 2026, over a dissent. A military judge sitting alone at a special court-martial at Camp Lejeune convicted Captain Durbin, contrary to her pleas, of one specification of conduct unbecoming an officer under Article 133, UCMJ, for manually stimulating a fellow Marine officer’s penis in her truck — on divers occasions, including once in a publicly accessible parking structure sixty yards from the squadron’s hangar, during working hours, in uniform. The military judge acquitted her of extramarital sexual conduct under Article 134 and excepted some of the charged conduct. The sentence: a reprimand. Durbin raised one assignment of error — legal and factual sufficiency — and a divided panel affirmed.

The Issue That Matters: The Substantive Limits of Article 133

The Case in Brief

The Navy-Marine Corps Court of Criminal Appeals decided United States v. Benton, No. 202400332, on June 5, 2026. A military judge sitting alone at a special court-martial at Marine Corps Air Station Cherry Point convicted Private First Class Benton, contrary to his pleas, of breaching restriction under Article 87b, UCMJ, and of attempting to escape from custody under Article 80, UCMJ. The escape charge arose at the base medical clinic. While two brig escorts walked Benton through pre-confinement screening, he kept pushing the revolving door, exited back into the parking lot, sprinted to a friend’s waiting car, and climbed in. A gunnery sergeant stepped in front of the car and ended the attempt.

The military judge sentenced Benton to fourteen days of confinement and credited him with eleven days of pretrial confinement. Critically, the judge also awarded day-for-day Article 13, UCMJ, credit after ruling that the commanding officer “inappropriately imposed punishment on the accused prior to trial” and that the CO’s justification for pretrial confinement “was unreasonable.” On appeal, Benton argued that the conviction for attempting to escape could not stand because the underlying custody was illegal. NMCCA affirmed the findings and sentence.

The Coast Guard Court of Criminal Appeals returned to United States v. Reimonenq for a second time and affirmed the findings and sentence. The opinion carries three practical lessons for any service member facing a court-martial: a suppression win can reshape plea negotiations, a broad waiver clause can end later appellate review, and a military judge may rely on a strong R.C.M. 706 record when accepting a guilty plea.

For Cave & Freeburg, LLP, the case also shows why an accused should bring experienced military defense counsel into the case early. Trial litigation, plea negotiations, mental-health evidence, and appellate preservation do not operate in separate boxes. Each decision changes the next one. A military defense lawyer who understands both trial and appellate practice can use that reality to protect the client when the case turns quickly.

The first Reimonenq decision changed the case

Analysis of United States v. Simmons, NMCCA No. 202500108

The unpublished NMCCA decision in Simmons is a modern, post-Military Justice Act application of a much older problem addressed in United States v. Palenius, 2 M.J. 86 (C.M.A. 1977): what does trial defense counsel still owe the accused after sentence is announced?

1. The Palenius baseline

United States v. Hurley (CAAF 2012) (caaf-petition-denied-hurley-military-defense-lawyer)

United States v. Hurley: What a One-Line CAAF Denial Actually Means

On 29 November 2012, the United States Court of Appeals for the Armed Forces (CAAF) denied the petition for grant of review in United States v. Hurley, 71 M.J. 468, 2012 CAAF LEXIS 1305. The entry is two words long: “Petition Denied.” That brevity hides a great deal of legal weight—and a great deal of professional opportunity for a service member who knows where the post-CAAF road actually leads. Any military defense lawyer who handles appeals will tell you a denied petition is rarely the end of the line. But it is a hinge moment, and what happens next determines everything.

AFCCA denied a writ of error coram nobis where a former officer relied on Air Force BCMR clemency to attack her false official statement convictions. A military defense lawyer at Cave & Freeburg breaks down the ruling.

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Coram Nobis After a Court-Martial: Lessons from In re White

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.