Court-Martial Trial Practice Blog

I was encouraged, and then disappointed [amended]

July 3, 2010 | The Law Office of Philip D. Cave

Now, don’t get discouraged when your being encouraged doesn’t work out. Remember a primary court-room rule: never let them see they’ve hurt you. Not too long ago Judge Vowell was chief in the Army’s First Judicial Circuit. One of her rules of court was that both counsel must comply with Federal Rule of Civil Procedure 26(a)(2). Essentially she wanted a mini-brief on the experts. Here is what she said on the record in a prior case:

MJ: I’ll tell you that in following – I learned from the judges who work for me each day, and one of them has taught me that – take a look at Federal Rule of Civil Procedure 26, I believe, dealing with expert witnesses. Be prepared to file a notice as to what the witness’s qualifications are, and the basis for the testimony. Basically, this is a preemptive strike at the Daubert/Kumho Tire issues.

CDC: I’m happy to hear that, Judge, because you are the first judge who I’ve ever – in all the times I’ve said, ‘Let’s go to 26,’ I’m happy to comply.

Confirmation bias – again

July 3, 2010 | The Law Office of Philip D. Cave

I’m encouraged, as occasionally I am

July 3, 2010 | The Law Office of Philip D. Cave

In the world of military justice it’s the small things that seem most encouraging at times. So . . . In my standard Article 32, UCMJ, production request (based on R.C.M. 405(f)(9)(10) primarily) or trial discovery demand one of the provisions is this:

3. Declination to Produce or Disclose.

a. If any information responsive to this request is not produced because of a claim of privilege, identify each item that would fall within the request and/or information affected, the basis of the privilege, and the current location of each document or information (i.e. a Vaughn Index, see Vaughn v. Rosen, 157 U.S. App. D.C. 340; 484 F.2d 820 (DC Cir. 1973)). Such material should be submitted, with notice to the defense, to the investigating officer or military judge for in camera review. See e.g. United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984).

Veterans unemployment rates

July 3, 2010 | The Law Office of Philip D. Cave

Air Force (and the other) Times reports:

The unemployment rate for veterans rose slightly in June, to 8 percent overall and 11.5 percent for Iraq and Afghanistan-era veterans, a sign that expanding programs aimed at helping veterans find work are not working in a stagnant job market.

June employment statistics released Friday by the Labor Department’s Bureau of Labor Statistics show the overall unemployment rate for veterans rose slightly from 7.8 percent in May. Still, the unemployment rate for veterans remains lower than the overall national rate of 9.5 percent.

Coast Guard collision

July 1, 2010 | The Law Office of Philip D. Cave

Coast Guard News reports:

Criminal charges ranging from involuntary manslaughter to dereliction of duty have been preferred by the Coast Guard against four boat crewmembers from Coast Guard Station San Diego in connection with a fatal collision between one of the station’s patrol boats and a civilian vessel in San Diego Bay late last year.

The charges were brought under the Uniform Code of Military Justice (UCMJ) and are based on information discovered by the Coast Guard investigators looking into the December 20, 2009, collision that resulted in the death of one child and the injury of other passengers on the civilian boat. Rear Admiral Joseph Castillo, commander of the 11th Coast Guard District, is the convening authority in the case.

Ms. Bligh may be soon adrift

July 1, 2010 | The Law Office of Philip D. Cave

Navy Times reports that:

The former cruiser skipper who was relieved of command in January after years of “cruelty and maltreatment” toward her crew will be required to show a Navy board why she should continue her career, a Navy spokesman said Thursday.

Capt. Holly Graf, who was fired as commanding officer of the Yokosuka, Japan-based cruiser Cowpens on Jan 13, will go before a Navy Personnel Command “show-cause board” within the next few months to make her case for staying[.]

Up periscope

June 30, 2010 | The Law Office of Philip D. Cave

Mountain Home News reports that:

The stepfather of the five-year-old child who accidentally shot and seriously wounded a Mountain Home high school student in February was convicted of reckless endangerment during a court-martial June 22[,] and sentenced to six month’s confinement and ordered to forfeit $500 pay per month for six months.

SignOnSanDiego reports:

Not always a fan

June 30, 2010 | The Law Office of Philip D. Cave

I’m not a fan of the Center for Military Readiness. But I have to acknowledge they at least raised a very important point about military sexual assault cases.

Read the various articles I’ve posted about confirmatory bias in connection with this piece from CMR about Sex, Lies & Rape. Although written in 2006, the points resonate today just as clearly.

The possibly soon to be junior senior enlisted at WPAFB

June 29, 2010 | The Law Office of Philip D. Cave

Dayton Daily News reports that:

The Air Force has moved a step closer to deciding whether to court-martial the Air Force Materiel Command’s former top enlisted man on charges he sexually harassed airmen, misused his authority, and tried to persuade others to assign those women to his area.

The investigating officer who heard three days of testimony in May at a hearing for Chief Master Sgt. William C. Gurney at Wright-Patterson Air Force Base has submitted his summary of the testimony and his recommendations to Scott Air Force Base, Ill., which is handling the decision on whether to court-martial Gurney. It could be several weeks before the review of Col. Michael O’Sullivan’s report is done and commanders at Scott Air Force Base render a decision[.]

All too common

June 29, 2010 | The Law Office of Philip D. Cave

CAAF has decided: United States v. Contreras, No. 09-0754/AF

We granted review of the following issue:

WHETHER THE HOUSEBREAKING CHARGE SHOULD BE SET ASIDE BECAUSE THE UNDERLYING CRIMINAL OFFENSE, INDECENT ACTS WITH ANOTHER UNDER ARTICLE 134, UCMJ, IS A PURELY MILITARY OFFENSE.