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.

The Virginia legislature has passed SB1563.  There are several provisions which should be adopted in military cases.

D. Whenever the Commonwealth intends to introduce expert opinion testimony at trial, the attorney for the Commonwealth shall notify in writing the accused of the Commonwealth’s intent to present such testimony not later than 14 days before trial, or as otherwise ordered by the court. The notice shall include the witness’s name and contact information, a summary of the witness’s qualifications, the substance of the facts and opinions to which the witness is expected to testify, a summary of the grounds for each opinion, and copies of written reports, if any, prepared by the witness.

There is a reciprocal requirement for the defense.  The new VA rule is consistent with federal practice under Fed. R. Crim. Pro 16(a)(G), and with then Judge D. Vowell (Army) in her court-martial scheduling orders.

MCIO ‘ware.  It still doesn’t protect your phone, especially if you give consent–but what the heck, it’s something.

NACDL Press Release: Nation’s Criminal Defense Bar Welcomes Passage by House of Representatives of the Email Privacy Act

Washington, DC (Feb. 6, 2017) – Today, the House of Representatives passed the Email Privacy Act (H.R. 387). This bill is a long overdue update of the Electronic Communications Privacy Act (ECPA), a bill passed in 1986 that governs the treatment of electronic communications. The Email Privacy Act establishes that law enforcement officers must obtain a warrant to access the content of most electronic communications and cloud-stored content from third-party providers and eliminates the arbitrary rule that would allow the government to obtain emails older than 180 days with a subpoena. The bill passed overwhelmingly in the last Congress 419-0.

AF Reporter.

THE FIFTH AMENDMENT IN THE DIGITAL WORLD 2 Technology has breathed new life into the interpretation of constitutional provisions.

EXCEPTIONAL TRANSITIONAL COMPENSATION 34 Help for Family Member Victims When Discharge Happens Before the Offense is Adjudicated [; increasing the secondary gain incentive].

The New York Times reports:

President Obama on Tuesday largely commuted the remaining prison sentence of Chelsea Manning, the army intelligence analyst convicted of an enormous 2010 leak that revealed American military and diplomatic activities across the world, disrupted the administration, and made WikiLeaks, the recipient of those disclosures, famous.

The decision by Mr. Obama rescued Ms. Manning, who twice tried to commit suicide last year, from an uncertain future as a transgender woman incarcerated at the male military prison at Fort Leavenworth, Kan. She has been jailed for nearly seven years, and her 35-year sentence was by far the longest punishment ever imposed in the United States for a leak conviction.

A Facebook post about military sexual assault training:

“There’s no need to try to understand why sexual assaults are up 550% in the Military. All women have no ability to think after one drink and are not responsible for their actions but a Male soldier is responsible for his actions with one drink. What an insult to women everywhere!! ”

Instructor: “if you sleep with your wife after she’s been drinking you actually just raped her because she is too incapacitated to consent”

The most potentially relevant is McWilliams v. Dunn, No. 16-5294, involves a question regarding the degree of independence needed for appointed mental health experts under Ake v. Oklahoma.

Then there are:

Weaver v. Massachusetts, No. 16-240:  The defendant claims his lawyer was ineffective for failing to object to a closure of the courtroom during empanelment of the jury.  Violation of the right to a public trial, when considered directly, is a “structural” error that is reversible without a showing that it actually prejudiced the defendant, but an ineffective assistance of counsel (IAC) claim requires a showing of prejudice under Strickland v. Washington.  Does IAC require a showing of prejudice when the underlying error is “structural”?  I believe Strickland is clear enough that the answer is “yes,” but there is enough of a circuit split for the high court to take it up.

The Court of Appeals for the Armed Forces has decided United States v. Wilson, __ M.J. __, No. 16-0267/AR, for the appellant.  The issue was:

Whether the military judge erred in denying the defense motion for appropriate relief under Rule for Court-Martial 917 where the military judge improperly applied Article 130, housebreaking, to a motor pool.

A unanimous court found that the military judge erred.

CBS news has picked up this:

A former Fort Bragg soldier who killed four women and raped others more than 25 years ago is again headed for execution.

The Fayetteville Observer reports Ronald Gray last week lost a battle to keep in place a federal court’s order issued eight years ago blocking his execution.