Judge Issues Category Archives — Court-Martial Trial Practice Blog Published by International Military Lawyer

A chilling thought for all Air Force sexual assault trials?

December 23, 2016 | The Law Office of Philip D. Cave

“We thus readily conclude that ex parte communications between a military judge and an SVC are generally proscribed.”

Yes, inexplicably, it was necessary for the Air Force Court of Criminal Appeals (AFCCA) to decide such an issue, as part of deciding what impact, if any, SVC’s ex parte communications had in a trial–a chilling thought.

In United States v. Turner, (an Air Force case) the SVC decided to have a little confab with the military judge before trial, allegedly about administrative matters–until you read the facts.

A military judge’s disqualification–always an issue?

October 27, 2016 | The Law Office of Philip D. Cave

The Army Court of Criminal Appeals has raised an interesting question and important reminder in United States v. Keen, decided 20 October 2016. The court itself specified the following issue.

WHETHER THE MILITARY JUDGE ACTED AS COUNSEL OR LEGAL OFFICER AS TO ANY OFFENSE CHARGED OR IN APPELLANT’S CASE GENERALLY OR FORWARDED CHARGES IN APPELLANT’S CASE WITH A PERSONAL RECOMMENDATION AS TO DISPOSITION WHEN HE WAS CHIEF OF MILITARY JUSTICE AT III CORPS?

The facts supporting this issue were:

Supreme Court gossip

October 23, 2016 | The Law Office of Philip D. Cave

SCOTUSBlog has an interesting post about the court’s relist practice. Some of us discussed the relist option when the court was considering the petition in United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) cert. denied.

When last we wrote about the statistics of relists a little over a year ago, it was to report on what was then a new trend: the court’s practice of routinely relisting petitions that are under serious consideration for review at second or subsequent conferences prior to entering orders granting or denying certiorari. The practice is by now an accepted feature of the certiorari process, and at least one relist is generally viewed as a necessary step on the way to a grant of further review. Here, we offer an update on the statistics of relists. Focusing on October Term 2015, we highlight some emerging trends in what appears to be an evolving practice.

Regrettably, on 3 October 2016 the court declined to take Captain Sullivan’s petition.

Judicial umpiring-WTR

July 18, 2016 | The Law Office of Philip D. Cave

Brett M. Kavanaugh, The Judge as Umpire: Ten Principles, 65 Cath. U. L. Rev. 683 (2016).

First, and most obviously, a good judge, like a good umpire, cannot act as a partisan.

Fifth, at the same time, to be a good judge and a good umpire you have to possess some backbone.