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.

I am a fan of this website as a resource to find ways to argue on behalf of a client, just as I am a fan of restorative justice.

The CCRC is pleased to announce the launch of its Compilation of Federal Collateral Consequences (CFCC), a searchable online database of the restrictions and disqualifications imposed by federal statutes and regulations because of an individual’s criminal record. Included in the CFCC are laws authorizing or requiring criminal background checks as a condition of accessing specific federal benefits or opportunities.

Black sailors more likely than white sailors to be referred to court-martial, report says

Brock Vergakis, The Virginian-Pilot, 7 June 2017.  The VP summarizes:

Black sailors were 40 percent more likely than white sailors to be referred to a court-martial over a two-year period examined by an advocacy group that focuses on military justice. . . .

LtCol CT called the possibility that defense counsel might be asking potential witnesses about evidence governed by MIL. R. EVID. 412 and 513 “gross and cruel.”  All this caused Capt X (the defense counsel) to audibly sob at counsel table, and she was unable to continue.

Unfortunately, it appears that the words and actions of the trial counsel (prosecutor) caused the defense counsel to make “several decisions about the appellant’s representation that were against her client’s interest, against the advice of the DHQE, and consistent with a concern for her and her husband’s situation.”

Sadly, today we report the decision in United States v. Hale, decided 31 May 2017, by the Navy-Marine Corps Court of Criminal Appeals.  Of seven assignments of error raised on appeal, the court reversed on this issue:  “III. That the appellant received ineffective assistance from his trial defense counsel, who were laboring under a conflict of interest[.]”

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It is essential that this parallel military justice system be seen as fair, just, [Constitution] compliant, and operating effectively, both at home and abroad. I note in passing that the civilian justice system also provides for extraterritorial jurisdiction in several contexts. However, unlike the civilian justice system, the extra-territorial reach of the parallel military justice system is essential to its daily operations: persons subject to the CSD are regularly required to serve abroad and complete overseas assignments or training exercises in international or foreign territories.

This parallel system of military justice is not a fossilized system of law. It is subject to the [Constitution] and was subject to tremendous change and adaptation even before the Constitution’s enactment.

And now we diverge–back to Canada.

https://globalmjreform.blogspot.com/2017/06/targeting-and-law-of-war.html

Reposting a new publication for judge advocates supporting investigations into law of war violations.  In particular, it relates to targeting decisions and the aftermath.  There are specific points to assist in evaluating criminal responsibility under the UCMJ.

As an investigative tool, DNA has been a powerful weapon in identifying or confirming who committed a crime.  But the value of DNA evidence is overshadowed by regular stories of corruption, incompetence, and flawed interpretation.  It’s, for this reason, I never accept the DNA results as golden for the prosecution in a contested case.

Here’s another story.  http://www.miaminewtimes.com/news/hundreds-of-south-florida-cases-in-doubt-over-dna-testing-problems-9383687

Two linked issues are driving the ongoing saga. The first came to light last summer, when an investigation found problems with how the Broward Sheriff’s Office crime laboratory was interpreting complex samples, which contain DNA from more than one person. With its accreditation threatened, the lab last July ceased reporting those complex samples and instead began sending them to outside experts.

In United States v. Battles, No. 20140399 (A. Ct. Crim. App. 31 May 2017), the court asked:

Where in the World is Captain Danenberger?

That he is named in the court opinion will tell the lawyer that this is a bad story.  “After conclusion of appellant’s trial, an embarrassing and unnecessary sideshow unfolded. The central figure in this drama is PFC LL’s SVC—Captain (CPT) John Danenberger. While we will explain in more depth, CPT Danenberger essentially mislead various individuals about his whereabouts, missed a court hearing, and then tried to deflect blame by breaching his duties to his client by implying his client had been untruthful in her testimony. While CPT Danenberger’s lack of candor was the fuel for this conflagration and his breach of professional standards was the spark that set it ablaze, the resulting fire likely should have been quickly extinguished. Instead, a multi-month drama unfolded.”

David F. Jacobs, Fifth Amendment in the Digital World, 43 THE REPORTER 2 (2017). This should be read considering the recent Air Force Article 62, UCMJ, appeal in United States v. Blatney, Misc. Dkt. No. 2016-16 (A.F. Ct. Crim. App. 22 May 2017) (unpub.). In Blatney the OSI gained consent to search the accused’s phone and also had him agree to “unlock” the phone.  See also, United States v. Robinson, No. ACM 38942 (A.F. Ct. Crim. App. 15 May 2017)(unpub.).

Bradford D. Bigler, Rebalancing Military Sentencing: An Argument to Restore Utilitarian Principles Within the Courtroom. 225 MIL. L. REV. 1 (2017). This should be read after doing some reading on restorative justice.  I have for some years been advocating with SJA’s and convening authorities a pretrial agreement more focused on the principles of restorative justice.  In that vein, I have had some success in obtaining some creative agreements.  The simplest has been direct restitution to the victim or complaining witness.  As an example, the payment of a significant dollar amounts directly to the victim—as restitution.  Such agreements must be negotiated through the SJA and commander to avoid ethical issues by dealing directly with the victim.  I have also seen a case or two where the client was accused of obstructing justice by seeking to negotiate their own resolution with the alleged victim—this is a critical concern in the messy divorce and child custody case.

Have a case with these issues?  Give me a bell (a British expression for a phone call) at 703-298-9562 or drop an eMail to mljucmj@court-martial.com.