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If approved by a federal court, the legal settlement will force the Army to review the discharges of recent veterans with mental health issues.

Read National Veterans Legal Services Program (NVLSP) v. Austin, Sec. Def.

“Various statutory provisions and regulations require the U.S. Department of Defense (“DoD”) to maintain a publicly accessible website containing all decisions rendered by its Discharge Review Boards and Boards for Correction of Military/Naval Records.”

We all like to refer to these prior decisions to triage a new case and to assist formulate arguments for why our client should win. Because they are publically available it is not necessary to have a paid research account like Lexis or Westlaw.

On 10 March 2021, the CAAF granted a petition in U.S. v. Michael P. Whiteeyes on the following issue:

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY ADMITTING APPELLANT’S STATEMENTS TO LAW ENFORCEMENT IN VIOLATION OF MILITARY RULE OF EVIDENCE 304(c).

The ACCA decision is here.

Appellant asserts the military judge erred by failing to suppress his statements to AFOSI, but he focuses on a different portion of the interview than did the Defense’s motion at trial. At trial, the Defense conceded Appellant effectively waived his rights to counsel and silence after the agents re-advised of his rights following the ten-minute break. The Defense’s contention at trial was that Appellant’s subsequent comments about feeling intimidated” was an unequivocal invocation of his Fifth Amendment right to silence. It was this “narrow” question that the military judge addressed and ruled on.

On appeal, Appellant asserts that his initial response when asked whether he wanted a lawyer, “Uh, yes? I don’t know. Like why, why would I need a lawyer,” was an unambiguous invocation of his Fifth Amendment right to counsel that the agents violated by failing to terminate the interview. The Government contends Appellant waived this issue by failing to raise it at trial. We agree that the issue was waived.

United States v. Sunday, AFCCA March 2021.

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.