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.

As for SPC KP [a witness to the alleged MSA], our doubts about her testimony are many. First, several witnesses shared their low opinion of SPC KP’s character for truthfulness, as well as SPC KP’s low reputation within the unit on this important trait. Second, SPC KP had a motive to fabricate, as the trauma she claimed to have suffered from witnessing this event were key factors in getting an exception to policy in order to obtain a service animal and achieve her longstanding wish to move out of the barracks. Third, her testimony was impeached in several instances by other witnesses. For example, SPC KP claimed that the morning after the incident, she told PFC HM everything she had witnessed in the bedroom. That is, what she related in her trial testimony was what she reported to PFC HM the morning after the party. By contrast, PFC HM was clear in her testimony that both SPC KP and PFC LC reported the next morning only that appellant was on top of PFC HM. Nothing more. In fact, when the incident was reported a few months later, PFC LC was surprised by the additional details related to SHARP personnel by SPC KP. In another example from the trial, SPC KP denied asking SPC MF about his Article 32 testimony, a denial later contradicted at trial by PFC MF. For these and other reasons, we find SPC KP’s testimony was not credible.

United States v. Sanders, ACCA 2018.

The “trauma” was from–

Here we go.

Carissa Byrne Hessick and F. Andrew Hessick, Procedural Rights at Sentencing.  Notre Dame Law Review, Vol. 90, 2014 ForthcomingUniversity of Utah College of Law Research Paper, No. 80

In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems. For mandatory systems ― systems that limit sentencing factors and specify particular punishments based on particular facts ― defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentence based on ex post facto laws. By contrast, for discretionary systems ― systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion ― defendants do not enjoy these protections. This Article challenges this discrepancy.

Comment on Carissa Byrne Hessick, The Expansion of CP Law.  21 NEW CRIM. L. REV. (coming soon).

As military defense counsel, we have had to deal with and address the “expansion” of CP into what is often referred to as erotica.  Ms. Hessick notes an expansion of CP law to cover possessing images of children who are clothed and not engaged in any sexual activity, and prosecutions for possessing smaller portions of artistic and non-pornographic images.

These prosecutions have expanded the definition of the term CP well beyond its initial meaning. What is more, they signal that CP laws are being used to punish people not necessarily because of the nature of the picture they possess, but rather because of conclusions that those individuals are sexually attracted to children. If law enforcement concludes that a person finds an image of a child to be sexually arousing, then these laws can subject that individual to punishment, even though the image would have been perfectly innocuous had it been possessed by someone else.

This Court unequivocally endorses the Supreme Court’s observation that “[f]ederal courts have an independent interest in ensuring that … legal proceedings appear fair to all who observe them.” Wheat v. United States, 486 U.S. 153, 160, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988).

United States v. Boyce, 76 M.J. 242, 253 (C.A.A.F. 2017).

The NMCCA has decided United States v. Brown — one of the questions:

I, currently, ask for the following as a minimal initial discovery request.

Any and all adverse or negative information contained in the personnel files of any federal or state law enforcement agent who may have worked on this case in any manner.  This includes but is not limited to Any “on-the-job” or field training records, training test score results, evidence of credentials having ever been suspended or revoked.  The defense does not agree that United States v. Henthorn sets the appropriate standard of production on this issue.  In fact some years ago, counsel had a case where the NCIS gave a Henthorn disclosure to the prosecutor that turned out to be substantially and materially false—which surprised the trial counsel at trial.

We can expand the initial request as more information comes to light.  I encourage counsel to review United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004).

The Supreme Court decided Ortiz v. United States, an appeal from CAAF, today.  Bottom line,

This Court has jurisdiction to review the CAAF’s decisions. The judicial character and constitutional pedigree of the court-martial

system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex.

The U.S. Supreme Court today took up Garza v. Idaho, No. 17-1026, involving the intersection of two recurring themes: lawyer decisions v. client decisions in the conduct of a case and how to apply rules developed for trials to the context of plea-bargained cases, which most cases are now.
In the course of a criminal trial, the lawyer makes most of the decisions, but a few are reserved for the client personally.  This “rule” or assignment of duty applies in courts-martial.  Whether to appeal is a client decision.  In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Court dealt with the issue of ineffective assistance claims for a lawyer’s failure to appeal, with or without consulting the client.  If the lawyer is found to have performed deficiently, the “prejudice” question is only whether there is a reasonable probability the client would have appealed, not that he would have prevailed on appeal.