Court-Martial Trial Practice Blog

Your chance to be published?

August 14, 2009 | The Law Office of Philip D. Cave

Call for Papers – 2010 ASIL Lieber Society Military Prize

by Kenneth Anderson

Here is the official call for papers for the 2010 ASIL Lieber Society Military Prize essay. To enter a paper, you do not have to be a member of ASIL, but you do have to be a member of your “nation’s regular or reserve armed forces.” This particular essay contest, in other words, is for military personnel.

Some of you will recognize Lieber, and not just because one of his grandson’s has a Reserve Center down the road from me named after him.

Army speedy trial case – cites to U.S. v. Cossio.

August 13, 2009 | The Law Office of Philip D. Cave

The ACCA has overturned the conviction of Private Simmons because the judge erroneously failed to dismiss the charges for an Article 10, UCMJ, violation. Here is the link to the unpublished opinion, Judge Ham writing for the court.

United States v. Simmons, ARMY 20070486 (A. Ct. Crim. App. 12 August 2009).

A military judge sitting as a general court-martial convicted appellant, in accordance with his pleas, of absence without leave, failure to go to his appointed place of duty, failure to obey a lawful order, and disorderly conduct, in violation of Articles 86, 92, and 134, Uniform Code of Military Justice, 10 U.S.C. § 886, 892, and 934 [hereinafter UCMJ].[1]

Quality assurance.

August 13, 2009 | The Law Office of Philip D. Cave

“The Army has reached it’s end strength numbers and believes it can easily reach the additional 22,000 SECDEF authorized last month. It is reinstating its Qualitative Management Program (QMP) that screens E-6 to E-9 records for any behavioral or legal problems and then separates those Soldiers.”

Keep in mind the new policy that those in paygrade E-6 and above are to report civilian convictions to their command. Failure to do so will be an orders violation. This link should take you to the DoD policy memorandum.

I constantly am asked by former military personnel if they can re-enlist. In almost all instances they have a GD or OTH, and at least an RE-3. The QMP is just another reason why a negative discharge will be harder to overcome.

Inaudible audio

August 12, 2009 | The Law Office of Philip D. Cave

Here is an interesting case from FederalEvidence blog on how the 8th Circuit deals with the scratchy issue of a poor audio recording.

Factors For Admitting “Partially Inaudible” Recordings

Eighth Circuit rules that partially inaudible recordings with a confidential informant may be admitted when the trial court finds that they “provide [the] jury with the ‘gist’ of the conversations” so that any inaudible portions do not “render” the tapes untrustworthy as a whole, in United States v. Trogdon, F.3d (8th Cir. Aug 6, 2009) (No. 08-2858).

Deserters abroad.

August 12, 2009 | The Law Office of Philip D. Cave

New policy keeps heat on deserters in Japan

By Travis J. Tritten and Hana Kusumoto, Stars and Stripes
Pacific edition, Friday, August 14, 2009

The U.S. military in Japan has been more aggressive in charging and tracking deserters since a fugitive sailor stabbed a taxi driver to death last year, military legal staff and investigators said.

Since then, a dozen servicemembers have been charged with desertion and five remain at large, according to figures supplied by U.S. Forces Japan, Japanese police and local bases.

More business for lawyers.

August 12, 2009 | The Law Office of Philip D. Cave

Navy stepping up drug testing program Stars & Stripes reports.

Sailors will face increased random drug tests as a result of recent changes to the Navy’s drug prevention program. The changes remove the requirement for an annual unit sweep. However, they mandate a minimum of four tests per month that must include at least 15 percent of a command’s members.

Discharged before discharged

August 12, 2009 | The Law Office of Philip D. Cave

How many times do we hear it from clients, especially appellate clients — “I got my discharge, it’s an honorable, what do I do?”

ACCA has decided that issue for Estrada, in United States v. Estrada.

Appellant argues her receipt of an administratively-issued honorable discharge prior to the convening authority’s approval of her adjudged bad-conduct discharge remits the punitive discharge and renders it a nullity. After considering the assignment of error and the applicable service regulations, we specified the following related assignment of error:

Prof’s comment on U.S. v. Matthews

August 12, 2009 | The Law Office of Philip D. Cave

Professor Colin Miller has a comment today on his blog about United States v. Matthews, 68 M.J. 29 (C.A.A.F 2009) He illustrates that Mil. R. Evid. 606 mirrors the federal rule but has the additional exception for “command influence” in the Members deliberation room.

Chain Of Command: Military Case Reveals Interesting Exception To Military Rule Of Evidence 606(b).

War resister not coming home – yet.

August 12, 2009 | The Law Office of Philip D. Cave

An American war resister one step away from being extradited to the United States has learned she’ll get to stay in Canada a little longer.

A judge has ordered a new pre-removal risk assessment for Kimberly Rivera, a 27-year-old mother of three who deserted the U.S. army in 2007 because of her opposition to the war in Iraq.

(The Canadian Press)

Fourth Circuit on validity of a MEJA-extra territorial type prosecution.

August 10, 2009 | The Law Office of Philip D. Cave

Monday, August 10, 2009: Fourth Circuit affirms CIA contractor detainee abuse conviction, Andrew Morgan

[JURIST] The US Court of Appeals for the Fourth Circuit [official website] on Monday affirmed [opinion, PDF] the conviction of a Central Intelligence Agency (CIA) [official website] contractor on assault charges related to the abuse of an Afghan detainee [JURIST report]. The court found that the district court had properly exercised maritime and territorial jurisdiction [18 USC § 7 text] over the actions of David Passaro [JURIST news archive] while he was employed by the CIA at Asadabad Firebase [GlobalSecurity backgrounder] in Afghanistan. Although the court rejected the construction of "military … mission" used by the US District Court for the Eastern District of North Carolina [official website] as too narrow, the duration and nature of the site’s use, and improvements made to the fortification lead the Fourth Circuit "to conclude that it possesses all the qualities of a permanent U.S. military base abroad, albeit on a smaller scale …."

h/tip JURIST