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.

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.

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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.

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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.”

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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.

In United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the Court of Appeals for the Armed Forces decided that–

[B]ecause the evidence of the charged sexual misconduct was already admissible in order to prove the offenses at issue, the application of Military Rule of Evidence (M.R.E.) 413 — a rule of admissibility for evidence that would otherwise not be admissible — was error. Neither the text of M.R.E. 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable doubt in the same case.

M.R.E. 413 otherwise allows the prosecution to introduce evidence of other similar sexual offenses to “prove” a pattern of sexually assaultive behavior.  It’s profile evidence (and it’s wrong, but the law allows it).  Hills was a members case!  As a consequence, the trial and lower appellate courts were limiting Hills to members cases only and refused to apply Hills to judge alone cases–until–

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The ongoing discussion about removing the line officer convening authority from making court-martial decisions is not new, nor are the criticisms of how a military justice process should work.  Check out–

Fred L. Borch, Military Justice in Turmoil: The Ansell-Crowder Controversy of 1917-1920.    ARMY LAWYER, Feb. 2017.

Military Times is reporting–House lawmakers Wednesday overwhelmingly passed new rules making the secret recording or unauthorized sharing of nude photos a crime under military law, in response to the Marine Corps United scandal earlier this year.

Rep. Martha McSally (R-Ariz.) this week will introduce legislation meant to fight nonconsensual sharing of “private, intimate media” in the military, following outcry over the Marine Corps’ nude-photo-sharing scandal.

The Protecting the Rights of IndiViduals Against Technological Exploitation, or PRIVATE Act, “defines when photo sharing is a crime, which is not clear in current law, and addresses questions related to freedom of speech and intent,” McSally said in a letter seeking cosponsors for the bill.

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