Court-Martial Trial Practice Blog
When a Marine Gunnery Sergeant faced a life-altering court-martial at Quantico, the prosecution alleged dereliction of duty leading to death arising from an incident during an Africa deployment. The charge carried severe criminal exposure and the very real prospect of a destroyed career, lost retirement, and permanent stigma. The stakes were as high as they come in military justice.
Cave & Freeburg, LLP stepped in. What followed was a model of meticulous investigation, disciplined pretrial litigation, and aggressive courtroom advocacy—culminating in a full acquittal and the restoration of a Marine’s reputation.
Background: The Government’s Theory
The government referred the Gunnery Sergeant to a General Court-Martial on the theory that his alleged failures in supervision and mission-execution proximately caused a Marine’s death during deployment. Prosecutors framed the incident as a preventable tragedy caused by dereliction. The referral occurred even though the evidence reflected multiple intervening factors, significant operational uncertainty, and ambiguous chain-of-command responsibilities.
The case placed at issue several core principles that recur in military criminal litigation:
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The government’s duty to prove actual knowledge or culpable inefficiency for Article 92 dereliction.
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The requirement to establish causation rather than mere speculation.
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The accused’s constitutional right to confront hostile witnesses and present exculpatory character and duty-performance evidence.
Well-established case law recognizes these requirements. Courts have repeatedly rejected attempts to criminalize ordinary negligence or impose liability based solely on hindsight. See, e.g.:
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United States v. Oxendine, 55 M.J. 323 (C.A.A.F. 2001) (holding that dereliction must rest on proof of actual knowledge or culpable failure).
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United States v. Brown, 50 M.J. 262 (C.A.A.F. 1999) (requiring the prosecution to establish a meaningful causal connection between alleged dereliction and the resulting harm).
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United States v. Caldwell, 75 M.J. 276 (C.A.A.F. 2016) (recognizing that command-climate dynamics and operational complexity must be evaluated when assessing duty).
These authorities formed the framework for the defense strategy.
Defense Preparation: Comprehensive Investigation and Pretrial Litigation
Upon being retained, Mr. Nathan Freeburg initiated an exhaustive investigation that ultimately shifted the course of the case. Working seamlessly with highly capable Marine defense counsel, Mr. Freeburg:
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Conducted extensive witness interviews across multiple commands.
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Secured operational documents, training records, and mission briefings that contextualized the event.
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Challenged causal assumptions embedded in the prosecution’s theory.
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Prepared targeted motions addressing the admissibility of certain opinions, training-standard interpretations, and government efforts to expand the scope of “duty.”
Cave & Freeburg’s team leveraged decades of experience litigating duty-related offenses in combat and training environments. Their work aligned with principles established in United States v. Bivins, 49 M.J. 328 (C.A.A.F. 1998), which underscores the necessity of scrutinizing operational context before attributing criminal fault to a service member.
Trial: Aggressive Cross-Examination and Compelling Defense Evidence
At trial, Mr. Freeburg employed methodical and penetrating cross-examinations to expose inconsistencies in the prosecution’s narrative. The defense demonstrated:
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Gaps in the government’s timeline.
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Overstated assumptions about foreseeability.
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Contradictions among prosecution witnesses.
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Operational realities that undermined the allegation that the Gunnery Sergeant willfully or negligently disregarded a known duty.
The defense also presented multiple character witnesses—senior Marines who testified to the Gunnery Sergeant’s professionalism, leadership, and integrity. Such evidence carries significant weight under R.C.M. 1001(d) and has long been recognized as critical when the government alleges intentional or culpably negligent conduct.
Together, the defense’s presentation dismantled the government’s causal theory and highlighted the Gunnery Sergeant’s exemplary service record.
Outcome: Full Acquittal
After evaluating the evidence, the court-martial panel returned a decisive verdict:
Not Guilty on all charges.
The Gunnery Sergeant returned to duty with honor intact. His career, retirement, and reputation were preserved.
Why Service Members Choose Cave & Freeburg
This result reflects what Cave & Freeburg delivers in every high-stakes case:
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Deep knowledge of military criminal law and service-specific regulations.
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Proven success in Article 92, homicide-related, and operational-misconduct litigation.
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Sophisticated command-climate and operational-context analysis.
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Relentless investigation and pretrial motion practice.
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Exceptional trial advocacy grounded in cross-examination skill and real-world experience.
Cave & Freeburg reads every new CAAF and CCA opinion, tracks emerging doctrinal issues, and brings decades of combined experience to defending service members worldwide. When your career, liberty, and reputation are on the line, you deserve counsel who understand the battlefield, the courtroom, and the law.
Cave & Freeburg, LLP—military defense counsel trusted to win when everything is at stake.