In the context of a court-martial, ineffective assistance of counsel refers to a claim by a military defendant that their defense counsel provided them with legal representation that fell below an objective standard of reasonableness and that this deficient representation prejudiced the outcome of their case. Under the Uniform Code…
A “coram nobis” appeal is a legal procedure used to challenge a criminal conviction or sentence after all other legal avenues for relief have been exhausted. It is a form of post-conviction relief available in some U.S. states and federal and military courts. Coram nobis appeals are generally limited to…
United States v. Filmore. 1. If a victim testifies on sentencing–the rules of evidence apply the same as any other witness. Article 6b does not waive the rules of evidence when a victim testifies in sentencing. (Note, the victim gave both sworn and unsworn statements.) Failure to follow the rules (even without…
Here’s how we start our “discovery” requests–as “Disclosure Requests.” The defense requests disclosure of the following items in advance of any UCMJ art. 32, preliminary hearing. The request is a continuing one in accordance with UCMJ arts. 32((a)(2)(D) and46; Rules 701, 703, 405(a), (e), (1), (f)(7), (h)(3)(A), Rules for Courts-Martial,…
A person being tried at court-martial may have their case dismissed before the members (jury) reach any findings. One way that can happen is when the military judge declares a mistrial. Your military defense lawyer should know what to do if the same charges are re-referred to a court-martial–the prosecution…
A press release alerts us to several proposals for the NDAA FY 2023 which could affect military justice. One addresses Supreme Court access (something NIMJ has long advocated for), and another is the question of unanimous verdicts post-Ramos v. Louisiana. A third addresses a suspect’s records (and their removal) when “Service…
Let’s begin with 10 U.S.C. § 1553a. (a)Establishment.— The Secretary of Defense shall establish a process by which to conduct a final review of a request for an upgrade in the characterization of a discharge or dismissal. (c)Definitions.—In this section: (1)The term “final review of a request for an upgrade…
Are military law enforcement investigations complete, thorough, and unbiased? It depends. The MCIO leadership and agents will tell you they are. Our experience over the years both as military defense counsel and military prosecutors is that investigations can be incomplete, with leads not followed, evidence not retrieved, and bias in…
My argument is no, and as military defense lawyers, this is our position at a court-martial trial held under the UCMJ. In State v. Terrance Police, 2022 Conn. LEXIS 123 (May 10, 2022), the issue was whether “touch DNA” was good enough for probable cause to get an arrest warrant.…
Probably not successfully based on AV2 v. McDonough, No. 22-369, 2022 U.S. Dist. LEXIS 72609 (D.D.C. April 20, 2022) and E.V. v. Robinson, 906 F.3d 1082, 1086 (9th Cir. 2018) certiorari den. 140 S.Ct. 501, 205 L. Ed. 2d 316 (2019). In each of these cases, a military judge had granted…