This site is for the trial practitioner (the military lawyer) of military justice, and for the information of U.S. active duty, Guard, and reserve service-members, their spouses and their families. Our goal is to focus on trial practice issues in cases arising under the UCMJ and being tried at court martial. We hasten to add that nothing on this blog should be taken as specific legal advice for a specific client.

From CAAF Daily Journal of 2 November.

No. 17-0507/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727. On further consideration of Appellant’s certificate for review and the briefs of the parties, it is ordered that the first and second certified issues are answered in the negative, and therefore, no answer is provided to the third certified issue because to do so would require issuing an advisory opinion. The decision of the United States Army Court of Criminal Appeals is affirmed.

Here is the ACCA opinion in Gould.  The case has a long and convoluted history.

Andrew McCarthy writes in National Review about the recent NY terror case and President Trump’s off-the-cuff comments.  In a well-reasoned piece, he makes the following point.

Yet, just as law-enforcement officials must respect the policy judgments of their political superiors, the political authority must respect the need for independent administration of justice in individual cases. The president undoubtedly has the power to interfere in criminal cases that are brought under his authority. He abuses that power, though, when he fails to affirm the rule of law and the public integrity of the judicial process.

The thought is equally applicable to other politicians and government leaders, and here I’m thinking of the connection to comments about military sexual assault issues and cases.  Of course, the legislature has a duty to protect society, identify what should be considered criminal conduct, and set out a process for holding criminals accountable to society.  But in the process, their oath of office requires them to “affirm the rule of law and the public integrity of the judicial process.”  When people decide that the law or its application is unfair (rightly or wrongly) disrespect for the law follows.

The USS Cole case judge Wednesday found the Marine general in charge of war court defense teams guilty of contempt for refusing to follow his orders and sentenced him to 21 days confinement and to pay a $1,000 fine.

Air Force Col. Vance Spath also declared “null and void” a decision by Marine Brig. Gen. John Baker, 50, to release three civilian defense attorneys from the case, and ordered them to appear before him in person here at Guantánamo or by video feed next week.

At issue was Baker’s authority to excuse civilian, Pentagon-paid attorneys Rick Kammen, Rosa Eliades and Mary Spears from the case of because of a secret ethics conflict involving attorney-client privilege. Also, the general refused a day earlier to either testify in front of Spath, or return the three lawyers to the case.

Other circuits have held that a prisoner may file a petition for a writ of habeas corpus if his sentencing court has been dissolved.” Id. at 1093 (quoting Prost v. Anderson, 636 F.3d578, 588 (10th Cir. 2011) (explaining that, for military prisoners, “the resort to § 2241 is the norm rather than the exception . . .

due to the evanescent nature of court-martial proceedings:

the sentencing court literally dissolves after sentencing and is no longer available to test a prisoner’s collateral attack”)).

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….

I have noticed an increase is improper prosecution arguments over the last five years — connected I think to sexual assault cases mostly.  So here is an article of interest.

Combating Prosecutor Misconduct in Closing Arguments, Oklahoma Law Review, Vol. 70, No. 3, Forthcoming

From the abstract:

I’ve been told more than once that a person doesn’t make a false allegation of rape because they have been rejected by someone they are romantically interested in.  Such denials a batguano crazy.  Take this as an example.

Following the verdict, Joanne Jakymec, chief Crown prosecutor for Wessex said: “Rebecca Palmer indulged in consensual sexual activity with the victim, but on being rejected by him embarked on a malicious campaign which led to him being arrested on more than one occasion and held in custody for periods of time.

From the Swindon Advertiser.


Trial and appellate lawyers often need to interpret what a statute means and how it applies to their case.

“There are some great Supreme Court cases on statutory interpretation, including the famous discussion regarding whether a tomato is a fruit.”

Says Prof. Tessa Dysart on Appellate Advocacy Blog.  She is referring to Nix v. Hedden, 149 U.S. 304 (1893), which held that “under customs law tomatoes counted as vegetables — and the importer had to keep paying the tariff.”  Her post is referring to State v. Barnes, decided 12 October 2017, by the Washington Supreme Court.