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

Unanimous verdicts

May 9, 2023 | The Law Office of Philip D. Cave

Military lawyers know that since the Supreme Court decided Ramos v. Louisiana, the U. S. military is the only federal jurisdiction that does not require unanimous findings of guilt.

Currently, a military jury (called a Panel of Members) must have eight members in a general court-martial (12 if it’s a death penalty case) and four in a special court-martial. Article 29. Three-fourths of the members must vote for a finding of guilty. Article 52.

That is the current law in the military, but it is being challenged. The Court of Appeals for the Armed Forces has several cases on the issue of unanimous verdicts, which will be decided this term. If the court decides in favor of unanimous verdicts, then the Government will likely appeal to the U. S. Supreme Court (or vice-versa).

Double Jeopardy

February 6, 2023 | The Law Office of Philip D. Cave

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 taking a second attempt to convict you.

In a recent case, we had that happen. Unlike uniformed defense counsel, we immediately filed a Writ of Mandamus and Prohibition to prevent the second trial. In Murillo, the Navy-Marine Corps Court of Criminal Appeals has agreed that (1) the court has jurisdiction to hear a Writ petition on this issue and (2) the military judge erred in declaring a mistrial. Thus, the court has dismissed the charges. (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

The Double Jeopardy Clause‘s whole concept is to protect the accused from a second or subsequent trial on the same charges. The trial itself is what is prohibited. The case is United States v. Murillo, No. 202200132 (N-M Ct. Crim. App. Feb. 3, 2023) (unpub.). The Double Jeopardy Clause is in the Fifth Amendment to the US Constitution, which says, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . ” The bar against double jeopardy comes from English common law, possibly from Roman law. See F. Ward, Double Jeopardy Clause of the Fifth Amendment. 26 Am. Crim. L. Rev. 1477 (1989). Ward points out that a double jeopardy challenge can be waived by a pretrial agreement because of a Supreme Court decision in United States v. Broce. The author suggests that the military judge should include in their inquiry about whether a waiver is knowing and intentional and whether the defendant understands that waiving the right to trial as part of a plea agreement is also waiving the double jeopardy claim.

DNA–is touch or transfer DNA reliable evidence of guilt

May 9, 2022 | The Law Office of Philip D. Cave

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. Here is the important part of the decision saying it wasn’t.

[T]he DNA evidence used to describe the suspect was not a single source sample known to have come from the perpetrator. Rather, it was “touch DNA,” also known as “trace DNA,” from multiple sources that might or might not have come from the perpetrator—something the police simply had no way of knowing when they applied for the John Doe arrest warrant. Notably, the state has not identified a single case, and our research has failed to uncover one, in which mixed partial DNA profiles from touch DNA provided the description of a suspect in a John Doe arrest warrant. Touch DNA “is a term used to describe DNA that is left behind just by touching an object …. Notwithstanding its name, however, touch DNA does not necessarily indicate a person’s direct contact with the object. Rather, according to [experts], abandoned skin cells, which make up touch DNA, can be left behind through primary transfer, secondary transfer, or aerosolization.” (Internal quotation marks omitted.) State v. Dawson, 340 Conn. 136, 153, 263 A.3d 779 (2021). Even when a person touches an object, “DNA is not always detectable, meaning that it is possible to have someone touch an object but not leave behind detectable DNA because … some people leave more of their skin cells behind than others, i.e., some people are better ‘shedders’ of their DNA than others. There are also other factors that affect the amount of DNA left on an object, such as the length of contact, the roughness or smoothness of the surface, the type of contact, the existence or nonexistence of fluids, such as sweat, and degradation on the object.” Id., 154.

Be careful who you talk to

November 3, 2018 | The Law Office of Philip D. Cave

Be careful of who you talk to if you are in trouble. I think it’s fair to say that CAAF has narrowed the who and when requirement for an Article 31, UCMJ, warning, as illustrated in a recent Air Force case.

Thus, Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected.” Jones, 73 M.J. at 361 (footnotes omitted) (citation omitted). However, the second of these prongs is met only if the questioner was acting in an official law enforcement or disciplinary capacity, or could reasonably be considered to be acting in such a capacity by a “reasonable person” in the suspect’s position. Id. at 362. “Questioning by a military superior in the immediate chain of command ‘will normally be presumed to be for disciplinary purposes,’” although such a presumption is not conclusive. Swift, 53 M.J. at 446 (quoting United States v. Good, 32 M.J. 105, 108 (C.M.A. 1991)) (additional citations omitted).

An “interrogation” includes “any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning.” Mil. R. Evid. 305(b)(2).

Mens rea in military criminal statutes or charges

October 25, 2017 | The Law Office of Philip D. Cave

From Prof. Berman at Sentencing Law & Policy.

As reported in this press release, yesterday “Senators Orrin Hatch (R-UT), Mike Lee (R-UT), Ted Cruz (R-TX), David Perdue (R-GA), and Rand Paul (R-KY) introduced legislation to strengthen criminal intent protections in federal law.” Here is more from the press release:

Their bill, the Mens Rea Reform Act of 2017, would set a default intent standard for all criminal laws and regulations that lack such a standard. This legislation would ensure that courts and creative prosecutors do not take the absence of a criminal intent standard to mean that the government can obtain a conviction without any proof a guilty mind….

Junk Science Reigns

September 25, 2016 | The Law Office of Philip D. Cave

so starts a post at wrongfulconvictionsblog–Junk Science Reigns ____ So Much for True Science in the Courtroom.

[W]hen the National Academy of Sciences report Forensic Science in the United States; A Path Forward was published

people thought we might see a true effort to address “junk science being used to convict innocent people.”

Don’t do it, but according to ACCA it may not be a crime

July 6, 2016 | The Law Office of Philip D. Cave

Is it an indecent exposure offense under UCMJ art. 120, to show someone a digital picture of your own genitals?

In a published opinion in United States v. Williams, __ M.J. __, No. 20140401 (A. Ct. Crim. App. Mar. 30, 3016), the Army Court of Criminal Appeals split 2-1 in deciding the case. The court holds that the offense of indecent exposure in violation of Article 120(n) (2006) and 120c(c) (2012) does not include showing a person a photograph or digital image of one’s genitalia.

That’s the BLUF.

In China they devalue currency. In the U.S. military they devalue your rights?

June 7, 2016 | The Law Office of Philip D. Cave

On 20 May 2016, the President, exercising his powers under UCMJ art. 36, signed an executive order amending the Manual for Courts-Martial. Changes to the rules of evidence are included. It was a change to Rule 311 that has draw significant attention and discussion among the UCMJ literati. Basically, a military judge grants suppression when

“exclusion of the evidence results in appreciable deterrence of future unlawful searches or seizures and the benefits of such deterrence outweigh the costs to the justice system.”

Mil. R. Evid. 311(a)(3) (2016).

This is important to today as well

April 19, 2015 | The Law Office of Philip D. Cave

The Washington Post has a report today:

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

IAC by not filing motions

October 18, 2014 | The Law Office of Philip D. Cave

Can a failure to file a pretrial motion equal ineffective assistance of counsel? The BLUF is yes in some cases. In some instances I have argued IAC on appeal for failing to make a meritorious motion. The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue. The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King. The issue of IAC for failure to raise a pretrial motion is neither novel nor rare. Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion. I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges. A more common issue is a motion to suppress, or speedy trial, or UCI.

Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue: [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”