Court-Martial Trial Practice

Bethesda, Maryland based law firm is seeking a full-time attorney to join our appellate litigation team in representing individual clients claiming benefits from a federal agency.

Responsibilities include federal appellate case management; research of applicable laws, regulations, and legal precedent; the preparation of briefs for submission to federal court; and other related legal projects as they arise. Training will be provided for attorneys new to this particular field.

Candidates must have 0-3 years of legal experience, excellent writing ability, and the ability to work quickly and independently. Candidates must have a JD from an accredited law school and already be a member in good standing of a state bar.

Appellant personally raises three matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982),one of which warrants discussion and relief.

My colleagues and I often discuss the value of Grostefon.  My personal theory is to be robust in asserting Grostefon errors on behalf of the client.  This is based on my years of experience.  I have seen the appellate courts take a Grosty issue, make something of it, and grant relief.  I was reminded of the merit in putting in Grostefon issues with the recent Army Court of Criminal Appeals case, United States v. Coleman.  Of course, that doesn’t mean that any relief is meaningful, as the result in Coleman shows.

After a lengthy but successful appeal, I get this message from a client.

As of this morning I am officially off the Sex Offender registration list (which is great cause I need a job). My family and I just wanted to again send you both a big thank you for all the hard work and great advice you put in over the past few years.

In a legal earthquake for the military justice system, the Court Martial Appeal Court of Canada (CMAC) has split 2-1 to strike down s. 130(1)(a) of the National Defence Act (NDA) because the majority held that the provision — which deems Criminal Code offences committed in Canada by military members to be “service offences” — deprives military accused of their Charter s. 11(f) right to trial by jury.

The Sept. 19 majority decision by CMAC Justices Jocelyne Gagne and Vital Ouellette (Chief Justice Richard Bell dissented) ruled that to deprive a military accused of a trial by jury for offences punishable by more than five years in prison, and that were committed within Canada, is not justified under s. 1 of the Charter as a reasonable and demonstrably justified limit in a free and democratic society: R. v. Beaudry 2018 CMAC 4.

The Lawyers Daily (Canada).

A retired judge in Iowa recently defended himself in a hearing of a contested order by saying, “I didn’t write this thing.” A review of Judge Edward Jacobson’s rulings found that he had failed to notify the parties in 13 cases where he had signed proposed rulings written by lawyers (presumably the lawyer involved in the litigation). Judge Jacobson said he believed it was common practice to have the lawyers in the case write the orders.

I think the judge is correct – it is common practice for the court to ask one of the attorneys to write orders at various stages of any case. The difference is that this is usually common knowledge to the parties involved in the case, and opposing counsel is consulted before submission of the proposed order, or at some stage before the order becomes final. The request for the order writing is usually done in the presence of both attorneys, so all parties are fully aware of the plan. This was not done in several of Judge Jacobson’s cases.

This practice raises a question though, should this be the practice at all? Why is it that the work emerging from a judge’s chambers is primarily drafted by a lawyer involved in the litigation? Isn’t a judge who does this just shifting her workload to the lawyer who will presumably bill the client for the time spent drafting an order? Or is it proper and more expedient for the lawyers in the case to do it themselves? They are better acquainted with the intricacies of the issues that must be addressed in any order, and would be ready to critique a judge-drafted order that missed important items anyway, which would slow down the process.

BYULaw, Law & Corpus Linguistics

Included are

Farrand’s Records covers three of the four volumes of The Records of the Federal Convention of 1787. Published in 1911, Farrand’s work attempted to represent the documentary records of the Constitutional Convention.