Court-Martial Trial Practice Blog

Article 15/NJP Refusal

November 15, 2023 | The Law Office of Philip D. Cave

The Secretary of the Navy has issued a significant change to Article 15/NJP procedures for service personnel assigned to or embarked on a vessel.

The Navy’s vessel exception is part of the Uniform Code of Military Justice (UCMJ) that allows the Navy to deny service members the right to demand a court-martial instead of nonjudicial punishment (NJP) if they are “attached to or embarked in a vessel.” This exception was created in 1962 to give the Navy more flexibility in disciplining sailors at sea, where conducting a court-martial can be logistically challenging and time-consuming.

The vessel exception has been controversial since its inception, many of us as military defense counsel have been critical of it, arguing that it strips sailors of their due process rights. In recent years, there have been calls to repeal the exception, and in 2023, the Navy announced that it would be expanding the circumstances in which sailors can refuse NJP. That change is here and your military defense lawyer can help you understand the change and how you might benefit from it.

Defining meaning from words in a statute

September 24, 2023 | The Law Office of Philip D. Cave

Generally

When deciding what a word or term in a statute means, the rule of statutory interpretation is to give the word or term its plain and ordinary meaning. This is known as the plain meaning rule. If the word or term is clear and unambiguous, then the court will not look beyond the text of the statute to determine its meaning. The principal rule is well known to military defense counsel as they prepare a case for trial.

If a word or term is ambiguous, then the court may use other tools of statutory interpretation to determine its meaning. These tools include:

Unanimous verdicts Update

September 23, 2023 | The Law Office of Philip D. Cave

In this earlier blog, I commented on the pending litigation over unanimous verdicts at courts-martial. As military defense lawyers we continue to support the advice given that the issue should be raised in all courts going forward.

The update is that the Court of Appeals for the Armed Forces has decided United States v. Anderson. The unanimous court decided that there was still no constitutional requirement for a unanimous court-martial verdict, despite the Supreme Court decision in Ramos v. Louisiana.

That means we must now wait until the issue gets presented to the Supreme Court for a final ruling on the issue. It can take time for the Supreme Court to decide to take on an issue. That was our experience as appellate military defense counsel in United States v. Weiss, 36 M.J.224 (C.M.A. 1992) aff’d Weiss v. United States. 510 U.S. 163 (1994). So,

Speed up post trial review

September 1, 2023 | The Law Office of Philip D. Cave

Have you been convicted at court-martial? Want a speedy review of your case for appeal?

There are two major roadblocks: (1) having the record of trial delivered to and docketed with the Air Force, Army, Coast Guard, or Navy-Marine Corps Court of Criminal Appeals and (2) the workload of the military appellate defense counsel. The roadblocks are, in my opinion, the Service Judge Advocate General’s fault in not assigning enough people to complete post-trial actions or work on the appeal promptly.

Immediately after the trial, there has to be a formal Entry of Judgment–which usually takes 30-45 days to complete. Then, the Government must prepare a full trial record forwarded to the appellate court and the military appellate defense lawyers who will work on the appeal. Here is where most of the delay can happen. These records take time to prepare–and too often, the Government takes an unreasonably long to do this. Records can take six to two years to get to the appellate court before the appellate defense counsel can get to work, and a decision comes from the court. We have a case right now where it took 412 days. The Navy-Marine Corps just decided on a case that took about ten years.

False official statements

July 29, 2023 | The Law Office of Philip D. Cave

The UCMJ makes it an offense under Article 107 to:

Sign a false record, return, regulation, order, or other official document, when you knew it was false; or
Make any verbal/oral false official statement when you knew it was false.

Challenge MRE 311!

July 18, 2023 | The Law Office of Philip D. Cave

YOUR MILITARY DEFENSE COUNSEL SHOULD CHALLENGE THE APPLICATION OF THE MILITARY RULE OF EVIDENCE 311.

THE RULE VIOLATES THE U.S. CONSTITUTION.

WE ARE CHALLENGING THAT AT THE U. S. SUPREME COURT NOW.

A proposal for a new enumerated Article 134(1)(2) offense

July 4, 2023 | The Law Office of Philip D. Cave

A proposal that a military defense lawyer might face in the future. LtCol Greg Curley, Exploitation. 230 Mil. L. Rev. 421 (2023). The author proposes the adoption of an enumerated offense under UCMJ Art. 134, which he suggests would criminalize “Precursor Behaviors to Sexual Assault.” As part of the offense, he also suggests what most of us would consider a service-connection requirement. He suggests,

Exploitation is a separate and distinct offense from a sexual assault, and both the exploitation and the consummated offense that was its object may be charged, tried, and punished. The commission of the intended offense may satisfy the intent element of the exploitation charge.

He does not address whether the offense should be labeled a lesser included offense, the potential for multiplicity questions, or whether the acts of the new offense are res gestae acts that may be separately punished. This will be an area of litigation for military defense counsel.

Rules of Evidence changes coming to a location near you

July 4, 2023 | The Law Office of Philip D. Cave

In May 2023, the Federal Rules Advisory Committees recommended changes were forwarded to Congress for “approval.” Included are two evidence rules changes that will likely become effective in courts-martial during 2025. The Military Rules of Evidence adopt the Federal Rules 18 months after they are effective. The new Federal rule is going to be effective 1 December 2023.

Two important changes will affect Mil. R. Evid. 106 (completeness) and 702 (expert testimony).

Daniel P. Elms, Rule of Evidence 702 Is Changing Faster Than You Think. ABA May 24, 2023, discusses the pending Rule 702 change. According to Elms, part of the rationale for change to 702 is,

Unanimous verdicts

May 9, 2023 | The Law Office of Philip D. Cave

Military lawyers know that since the Supreme Court decided Ramos v. Louisiana, the U. S. military is the only federal jurisdiction that does not require unanimous findings of guilt.

Currently, a military jury (called a Panel of Members) must have eight members in a general court-martial (12 if it’s a death penalty case) and four in a special court-martial. Article 29. Three-fourths of the members must vote for a finding of guilty. Article 52.

That is the current law in the military, but it is being challenged. The Court of Appeals for the Armed Forces has several cases on the issue of unanimous verdicts, which will be decided this term. If the court decides in favor of unanimous verdicts, then the Government will likely appeal to the U. S. Supreme Court (or vice-versa).

Another bad day at CAAF for the Fourth Amendment.

May 7, 2023 | The Law Office of Philip D. Cave

Two recent decisions of CAAF condone unlawful or bad practices when OSI, CID, NCIS, and CGIS search cellphones; United States v. Shields and United States v. Lattin. As a result, the MCIOs are unlikely to change their unlawful or bad practices. More than sloppy police work gets two passes because the military appellate courts think suppression of evidence won’t change that behavior–and the accused is a bad person. Military defense lawyers need to be fully aware of the issues whenever evidence from an accused’s cellphone comes up in evidence.

The Fourth Amendment protects against unreasonable searches of our property, including cell phones. In Riley, the Supreme Court properly required a search warrant for (CID, OSI, CGIS, and NCIS) intrusions into seized cellphones. The court has acknowledged that people have a privacy right against Government intrusion without a warrant based on probable cause. As we know, there is an awful lot of personal data that is kept on the cellphone, and that can be retrieved with forensic tools.

In Lattin, the issue was a fishing expedition through the Appellant’s cellphone. The trial transcript shows that the OSI agent believed she had the right to search everything in the cellphone because it had been seized after the execution of a commander’s search and seizure authorization. With that general warrant concept in her mind she scrolled through a lot of information on the Appellant’s phone that wasn’t related to the reason for the search in the beginning. The OSI agent did not believe there were any limits based on her training and experience. Both the AFCCA and CAAF have ruled that the search was unlawful but that it was excused because there would be no future deterrent effect to OSI committing further unlawful searches. The court partly relied on Mil. R. Evid. 311, which wrongly summarizes the law post-Herring that was reinforced in Davis.