Court-Martial Trial Practice Blog

A unit reminder

July 31, 2018 | The Law Office of Philip D. Cave

In Forrester, our superior court clarified that the unit of prosecution for possessing child pornography is tied to the material containing illicit images, and “not the quantity or variety of visual depictions.” Forrester, 76 M.J. at 481. In Mobley, we held when multiple illicit images or videos are possessed on a single computer, the computer is the “material” constituting the unit of prosecution. Mobley, slip op. at 5.

We conclude the proper unit of prosecution for both Specification 2 and Specification 3 is the appellant’s laptop computer, regardless of whether the images were found in allocated or unallocated space. Accordingly, we consolidate Specifications 2 and 3 of The Charge in our decretal paragraph.

The military judge correctly noted that several of the images at issue are duplicates. The number of images alleged, however, is irrelevant to the unit of prosecution and is surplus to the specification the government chose to draft. While the number of images is a proper matter in aggravation, it need not be alleged in the specification and may be offered as aggravating evidence through a stipulation of fact, or any otherwise proper form of evidence. For the purposes of alleging the offense of possession of child pornography under Article 134, UCMJ, it suffices to charge that an accused possessed “multiple” images.

What do you do after trial

July 31, 2018 | The Law Office of Philip D. Cave

Self-assessment. As a supervisor of counsel, I would ask them to come to me after trial and discuss what they think the three best and worst things they did. I was intent on mentoring them to reinforce the good and see if, any truly bad issues could be resolved in the future. Like you, I spend time after trial wondering ‘what if.’ Such ruminations are helpful and necessary. But . . .

The initial claim of ineffectiveness centered on an email appellant’s civilian defense counsel (CDC) sent his military defense counsel. In the email, the CDC expressed a low opinion of his trial performance, writing, “I screwed up crossing [the victim]. I alone was ineffective. . . .”

We first address the weight we should give the civilian defense counsel’s opinion contained in an email that he was “ineffective.” We give it slight weight for two reasons. First, as the Supreme Court has stated, “After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome.” Harrington v. Richter, 562 U.S. 86, 109 (2011). Second, a counsel’s subjective evaluation is of only marginal relevance in resolving an objective inquiry. Strickland requires an objective inquiry. 466 U.S. at 688.

A reason to make false statements in a MSA case

July 31, 2018 | The Law Office of Philip D. Cave

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–

Worth-the-Read, grabbed few items

July 1, 2018 | The Law Office of Philip D. Cave

Here we go.

Carissa Byrne Hessick and F. Andrew Hessick, Procedural Rights at Sentencing. Notre Dame Law Review, Vol. 90, 2014 Forthcoming, University 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.

Expanding the definition of CP and other things

July 1, 2018 | The Law Office of Philip D. Cave

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.

Motions and IAC

June 27, 2018 | The Law Office of Philip D. Cave

The “unit’ of possession for a CP prosecution is the container–a computer, a cellphone, or a plug-in drive, each is a separate unit.

Everything in the one unit must be charged as only one specification.

The Army Court of Criminal Appeals decided United States v. Mobley on 22 June 2018.

Reasonable grounds (a quite low standard) is all that is needed to refer charges–not probable cause

June 25, 2018 | The Law Office of Philip D. Cave

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:

Discovery about MCIOs involved in your case

June 25, 2018 | The Law Office of Philip D. Cave

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).