Court-Martial Trial Practice Blog

A resource for Virginia’s veterans

August 4, 2017 | The Law Office of Philip D. Cave

Virginia Military and Veteran Legal Resource Guide

Attorney General Mark R. Herring has created the Virginia Military and Veteran Legal Resource Guide, a new tool to help Virginia servicemembers, military families, and veterans understand the unique legal protections, rights, and resources available to them under the law. Volunteer attorneys from the Office of Attorney General spent more than a year developing the new guide, which will be distributed in hard copy and electronically in conjunction with the Virginia Department of Veterans Services, veterans’ service organizations, and more.

CAAF grants and sets-aside, with a remand

July 26, 2017 | The Law Office of Philip D. Cave

In my case of United States v. Lightsey, the CAAF has set-aside the decision of the Air Force Court of Criminal Appeals, and has ordered a new review to consider the impact of United States v. Hukill.

Hukill applied the court’s decision in United States v. Hills to military judge alone trials.

A possible new development with vet’s and PTSD

July 26, 2017 | The Law Office of Philip D. Cave

Military veterans keep secrets from the battlefield. But retired Marine Richard Cachola’s refusal to reveal details of a traumatic experience he had while serving in Iraq — and the mental health treatment he received as a result — put him at risk of losing custody of his children.

“My PTSD has no relationship to my ability to be a father,” Cachola said, after declining to provide court-ordered mental health records of his PTSD history in family court.

Cachola’s case reflects why child-custody disputes can be complicated, especially if one spouse has been diagnosed with a mental illness resulting from war. Family court judges must balance a parent’s right to privacy with the best interest of the children involved.

Two new Navy instructions of interest

July 25, 2017 | The Law Office of Philip D. Cave

Sexual Harassment Prevention & Response Program, OPNAVINST 5300.13.

Equal Opportunity Program, OPNAVINST 5354.1G.

Challenge to sex offender registration in Pennsylvania

July 20, 2017 | The Law Office of Philip D. Cave

As I have argued, for some time in courts-martial, sex offender registration is effectively a punishment in today’s society–despite what legislators and courts say. Well, now we have an interesting decision from the Pennsylvania Supreme Court, in a 3-1 decision, about ex post facto changes to SOR.

[T]he provisions of the state’s sex offender registration law (SORNA) [are] unconstitutional under the state and federal constitutions, according to the majority in Commonwealth v. Muniz held that 1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.

The bottom line here for me is that various courts are now holding that SOR is punitive. I argue that as the reason an accused should be able to raise SOR requirements in sentencing and that the members should not be given a “Talkington” instruction.

UCMJ and MCM changes coming

July 2, 2017 | The Law Office of Philip D. Cave

The DoD Joint Service Committee on Military Justice has some new “publications” on its website. But more importantly, there are a number of proposed changes not yet on their site (but which are available on CAAFLog).

A draft Executive Order indicating an effective date for the MJA of January 1, 2019.
Annex 1 to the draft Executive Order, making changes effective immediately once the Order is signed. Of note, are changes to regulate the sealing of all or parts of the record, changes to MRE 311, which adds, “that the evidence was obtained by officials in objectively reasonable reliance on a statute or on binding precedent later held violative of the Fourth Amendment[.]” And,

Copious rations and heaping servings

June 24, 2017 | The Law Office of Philip D. Cave

The military does not have Alford pleas.

In an Alford Plea, the criminal defendant does not admit the act but admits that the prosecution could likely prove the charge. The court will pronounce the defendant guilty. The defendant may plead guilty yet not admit all the facts that comprise the crime. An Alford plea allows the defendant to plead guilty even while unable or unwilling to admit guilt. One example is a situation where the defendant has no recollection of the pertinent events due to intoxication or amnesia. A defendant making an Alford plea maintains his innocence of the offense charged. One reason for making such a plea may be to avoid being convicted on a more serious charge. Acceptance of an Alford plea is in the court’s discretion.

The military requires a person to plead not guilty or, if they plead guilty, they must engage in a detailed discussion on the record with the military judge. In that discussion, the person must give facts supporting the charge, agree that they committed the offense, and waive several constitutional rights. See United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969); United States v. Hayes, 70 M.J. 454 (C.A.A.F. 2011).

Note for appellate counsel

June 24, 2017 | The Law Office of Philip D. Cave

By order of the Chief Judge, the United States Court of Appeals for the Armed Forces will be closed all day on Monday, July 3, 2017. For purposes of computation of time and motions to enlarge time under the Court’s Rules of Practice and Procedure, July 3, 2017, will be considered a day when the Court is officially closed. While not a preferred status, you have an extra day if butting up against the due date.

Supreme Court invalidates ban on social media for sex offenders

June 19, 2017 | The Law Office of Philip D. Cave

In 2002, Lester Packingham became a convicted sex offender at the age of 21, after he pleaded guilty to taking indecent liberties with a child – having sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he posted on Facebook to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that makes it a felony for a convicted sex offender to use social-networking websites, such as Facebook and Twitter, that allow minors to create accounts. Today Packingham has something else to be grateful for, and he can take to social media to express that appreciation because the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.

So writes Amy Howe on SCOTUSBlog, about Packingham v. North Carolina.

How difficult is it to get a federal court to overturn a court-martial conviction

June 17, 2017 | The Law Office of Philip D. Cave

I have discussed before how very difficult it is for an appellant to get a federal court to review and overturn a court-martial conviction.

Here is Randolph v. United States, a federal circuit case reviewing an attempt to get relief via the Court of Federal Claims.

The United States Department of the Navy (Navy) dishonorably discharged Jerome Randolph, the pro se appellant, after a court-martial convicted him for sexual assault and falsifying a statement about that assault. After this discharge, Mr. Randolph repeatedly sought expungement of his court-martial conviction, as well as an award of back pay and an upgraded discharge status, before the Board for Correction of Naval Records (Board). The Board denied him any relief. He ultimately filed suit against the United States (government) in the United States Court of Federal Claims (Claims Court) seeking the same relief he sought from the Board, as well as claiming relief from defamation. The Claims Court concluded that, in light of his court-martial conviction, the Board reasonably refused to award him back pay and upgrade his discharge status. The Claims Court also held that it had no jurisdiction to expunge his court-martial conviction or to proceed with his defamation claim. Even after we broadly construe Mr. Randolph’s arguments on appeal, we affirm.