Court-Martial Trial Practice Blog

More on SOR

November 29, 2018 | The Law Office of Philip D. Cave

Advising a client on SOR is difficult. They want specific answers and often you can’t give them more than general advice. There are several points I try to make with clients.

Title I of the Adam Walsh Child Protection and Safety Act of 2006, the Sex Offender Registration and Notification Act (SORNA), specifically includes certain Uniform Code of Military Justice (UCMJ) convictions in its definition of “sex offense.”

Department of Defense Instruction 1325.07 contains the specific list of UCMJ convictions that require registration under SORNA¹. Jurisdictions must ensure that all of the UCMJ convictions listed in DOD Instruction 1325.07 are included in their sex offender registration schemes.

Innocent or want a trial, but plead guilty anyway

November 9, 2018 | The Law Office of Philip D. Cave

I have always argued for full and early discovery in court-martial cases. How can you defend someone when discovery is delayed or held-back. And how can you make a properly considered judgment on a PTA or not.

“The Right to Evidence of Innocence Before Pleading Guilty,” on SSRN. Here is the abstract:

George Alvarez, a ninth grade, special education student, pleaded guilty to assault of a peace officer in Texas. Four years into his sentence, Alvarez learned that the State had suppressed a video of the incident that proved his actual innocence. Alvarez claimed that the city violated the Brady doctrine by failing to disclose material exculpatory evidence. In rejecting his claim, the Fifth Circuit concluded that “case law from the Supreme Court, this circuit, and other circuits does not affirmatively establish that a constitutional violation occurs when Brady material is not shared during the plea bargaining process.” Given that 95% of convictions are secured through guilty pleas, such an interpretation of Brady means that few defendants are entitled to evidence of their innocence before being convicted.

Presumptions in criminal cases

November 8, 2018 | The Law Office of Philip D. Cave

Christopher B. Mueller, Laird C. Kirkpatrick and Liesa Richter (University of Colorado Law School, George Washington University – Law School and University of Oklahoma – College of Law) have posted two entries from their new book, Evidence §3.13 (6th ed. Wolters Kluwer 2018), on SSRN. The first is §3.13 ‘Presumptions’ in Criminal Cases. Here is the abstract:

This article addresses the constitutionality of “presumptions” in criminal cases. It discusses the leading case of Sandstrom v Montana and its holding that a presumption cannot be mandatory in a criminal case.

The second is §3.14 Inferences in Criminal Cases. Here is the abstract:

Be careful who you talk to

November 3, 2018 | The Law Office of Philip D. Cave

Be careful of who you talk to if you are in trouble. I think it’s fair to say that CAAF has narrowed the who and when requirement for an Article 31, UCMJ, warning, as illustrated in a recent Air Force case.

Thus, Article 31(b), UCMJ, warnings are required when (1) a person subject to the UCMJ, (2) interrogates or requests any statement, (3) from an accused or person suspected of an offense, and (4) the statements regard the offense of which the person questioned is accused or suspected.” Jones, 73 M.J. at 361 (footnotes omitted) (citation omitted). However, the second of these prongs is met only if the questioner was acting in an official law enforcement or disciplinary capacity, or could reasonably be considered to be acting in such a capacity by a “reasonable person” in the suspect’s position. Id. at 362. “Questioning by a military superior in the immediate chain of command ‘will normally be presumed to be for disciplinary purposes,’” although such a presumption is not conclusive. Swift, 53 M.J. at 446 (quoting United States v. Good, 32 M.J. 105, 108 (C.M.A. 1991)) (additional citations omitted).

An “interrogation” includes “any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning.” Mil. R. Evid. 305(b)(2).

Can MRE 404(b) allow for an end-run around Hills and Hukill?

November 2, 2018 | The Law Office of Philip D. Cave

The answer is possibly, but it requires some very specific analysis using the Reynolds test. The Air Force Court of Criminal Appeals has decided United States v. Hyppolite, II, where this issue arose.

In this case, the prosecution sought to use evidence of different allegations of a sexual offense to show that, “Appellant’s conduct admitted to prove each charged offense could properly be used under Mil. R. Evid. 404(b) as evidence that Appellant had a pattern or common plan of engaging in sexual conduct with his friends after they had been drinking and were asleep or trying to fall asleep.”

“The crux of Appellant’s position throughout trial and on appeal is that the sexual conduct alleged in each specification was separate and distinct and must stand on its own. Appellant contends that the allegations were not sufficiently similar to show a common plan and that allowing evidence of one charged offense as evidence of a separate charged offense was tantamount to allowing the factfinder to consider evidence of Appellant’s propensity to engage in sexual misconduct. Appellant, citing United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), and United States v. Hills, 75 M.J. 350 (C.A.A.F 2016), renews on appeal his claim that the military judge misapplied Mil. R. Evid. 404(b) and Mil. R. Evid. 403 and improperly allowed charged offenses to be used as propensity evidence to prove other charged offenses?

MJ clemency recommendation

October 21, 2018 | The Law Office of Philip D. Cave

On occasion, a military judge will make a clemency recommendation.

In United States v. Coleman, the military judge did just that.

“that the convening authority or any other authority has the authority to dismiss Specification 2 of Charge V, I recommend that such authority dismiss Specification 2 of Charge V.”

Who controls

October 21, 2018 | The Law Office of Philip D. Cave

Some years ago the AFCCA decided several cases in which it “held” that the CAAF erred in applicable decisions and effectively “overrule” the CAAF. CAAF, of course, told the AFCCA that they cannot overrule the CAAF and should follow CAAF’s decision. Now it seems the Army Court of Criminal Appeals may be doing something similar; at least that’s the impression given from two recent grants by CAAF.

In United States v. Tovarchavev (link to ACCA) the issue granted is:

WHETHER THE ARMY COURT ERRED, FIRST, IN FINDING THAT THIS COURT OVERRULED SUB SILENCIO THE SUPREME COURT HOLDING IN CHAPMAN v. CALIFORNIA, 386 U.S. 18, 24 (1967), AND THIS COURT’S OWN HOLDINGS IN UNITED STATES v. WOLFORD, 62 M.J. 418, 420 (C.A.A.F. 2006), AND IN UNITED STATES v. HILLS, 75 M.J. 350, 357 (C.A.A.F. 2016), AND, CONSEQUENTLY, IN TESTING FOR PREJUDICE IN THIS CASE USING THE STANDARD FOR NONCONSTITUTIONAL ERROR.

Employment opportunity-possible VET related

October 17, 2018 | The Law Office of Philip D. Cave

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.

Why I raise Grostefon errors on your behalf

October 15, 2018 | The Law Office of Philip D. Cave

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.

Private internet speech is unlawful if an officer in the AF

October 15, 2018 | The Law Office of Philip D. Cave

11 October 2018. Orders Granting Petition for Review

No. 18-0339/AF. U.S. v. Scott A. Meakin. CCA 38968. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT’S CONVICTION FOR ENGAGING IN ANONYMOUS, PRIVATE, AND CONSENSUAL COMMUNICATIONS WITH AN UNKNOWN PARTNER(S) IN THE PRIVACY OF HIS HOME WAS LEGALLY SUFFICIENT.