Court-Martial Trial Practice Blog

DoD 2016 Military Investigation and Justice Experience Survey

October 23, 2016 | The Law Office of Philip D. Cave

Good friend Gene Fidell has drawn attention to a news release about the new report. In particular he notes that 23% of those surveyed last year would not recommend making a report. The 2015 survey report is Enclosure 3.

Interestingly, last year nearly a number of respondents were dissatisfied with the various services available to a complaining witness.

Specifically, 80% of respondents were satisfied with overall services provided by the SVC/VLC during the military justice process, 74% of respondents were satisfied with the services provided by the UVA/VA, and 68% of respondents were satisfied with the services provided by the SARC. Across these individuals, less than 20% were actively dissatisfied with the services provided by the UVA/VA (19% dissatisfied) or SARC (17% dissatisfied). Few respondents were dissatisfied with the SVC/VLC program, which was the highest rated resource across all respondents (only 7% actively dissatisfied).

Supreme Court gossip

October 23, 2016 | The Law Office of Philip D. Cave

SCOTUSBlog has an interesting post about the court’s relist practice. Some of us discussed the relist option when the court was considering the petition in United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) cert. denied.

When last we wrote about the statistics of relists a little over a year ago, it was to report on what was then a new trend: the court’s practice of routinely relisting petitions that are under serious consideration for review at second or subsequent conferences prior to entering orders granting or denying certiorari. The practice is by now an accepted feature of the certiorari process, and at least one relist is generally viewed as a necessary step on the way to a grant of further review. Here, we offer an update on the statistics of relists. Focusing on October Term 2015, we highlight some emerging trends in what appears to be an evolving practice.

Regrettably, on 3 October 2016 the court declined to take Captain Sullivan’s petition.

Medical privileges overseas-WorthTheRead

October 15, 2016 | The Law Office of Philip D. Cave

We have complications in CONUS trials with doctor-patient privileges.

Overseas, host nation laws can make an already complex issue more difficult to navigate.

COL (former military judge) Masterson discusses the administrative and legal difficulties under the NATO SOFA.

Appellate advocacy CLE opportunity

October 15, 2016 | The Law Office of Philip D. Cave

Appellate Advocacy 2016

Date & Time: Friday, October 21, 2016 from 9:00 am to 5:00 pm

CLE Credit: Yes

It has to be pretty bad

October 13, 2016 | The Law Office of Philip D. Cave

https://www.thefire.org/ocr-finds-unfair-disciplinary-process-for-accused-student-violates-title-ix/

Nope, apparently not looking for Bergdahl the Army says

October 7, 2016 | The Law Office of Philip D. Cave

Sara Koenig, Was Anyone Killed Looking for Bowe Bergdahl? Some Hard Evidence at Long Last, 6 October 2016.

After nearly a year of waiting, [Serial has] finally received the Army’s internal investigations into the 2009 deaths of six soldiers from Bowe Bergdahl’s unit: MW, CB, KC, MM, DA and MM.

None of these investigations report that any of these men was on a mission to look for Bergdahl. Neither Bergdahl’s name, nor the term DUSTWUN (shorthand for a missing soldier), appears in any of the documents.

Hennis decided–findings and sentence affirmed

October 7, 2016 | The Law Office of Philip D. Cave

The Army Court of Criminal Appeals has decided United States v. Hennis, the military’s latest death penalty appeal.

The opinion is 106 pages long, so it will take a little time read. But what struck me immediately were the statistics.

The case was heard en banc. However, of 12 judges assigned to court and initially eligible to participate, all but four were disqualified for one reason or another.

Odd specified issue at CAAF

September 29, 2016 | The Law Office of Philip D. Cave

In United States v. Lopez, Army Court of Criminal Appeals affirmed, but there is no opinion on the Army court website and I don’t see it in Lexis.

The Court of Appeals for the Armed Forces has specified an issue for review in this case as follows:

No. 16-0487/AR. U.S. v. Mario I. Lopez. CCA 20140943 [2016 CAAF LEXIS 773]. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

Federal Register items of interest for SAPR issues

September 27, 2016 | The Law Office of Philip D. Cave

32 CFR Part 105 Sexual Assault Prevention and Response (SAPR) Program Procedures; Final Rule, of 27 September 2016, 81 FR 66424.

This rule contains amendments to an interim final rule published in the Federal Register on April 11, 2013, which provided guidance and procedures for the SAPR Program. This included establishing the processes and procedures for the Sexual Assault Forensic Examination (SAFE) Kit; establishing the multidisciplinary Case Management Group (CMG), providing guidance on how to handle sexual assault; and establishing minimum program standards, training requirements, and requirements for the DoD Annual Report on Sexual Assault in the Military. This rule adds amendments from the National Defense Authorization Act (NDAA) for Fiscal Year 2016, which contains a provision that preempts state laws that require disclosure of personally identifiable information (PII) of the adult sexual assault victim or alleged perpetrator to local or state law enforcement. This interim final rule implements this provision with respect to care sought at DoD Installations.

81 FR 66185, of 27 September 2016.

United States v. Hills applies to MRE 414 as well

September 26, 2016 | The Law Office of Philip D. Cave

No. 16-0704/AR. U.S. v. Dwight Harris, Jr. CCA 20131045. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER, IN LIGHT OF UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016), THE MILITARY JUDGE ERRED IN APPLYING MRE 414 TO CHARGED CONDUCT TO SHOW APPELLANT’S PROPENSITY TO COMMIT THE CHARGED CONDUCT.

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue.