Court-Martial Trial Practice Blog

UCI is back in focus

May 18, 2016 | The Law Office of Philip D. Cave

The CAAF took the following action last Friday.

No. 16-0309/AR. U.S. v. Michael B. O’Connor. CCA 20130853. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of the conflicting affidavits between Appellant and his trial defense counsel, we conclude that the Court of Criminal Appeals erred when it failed to order a factfinding hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding Appellant’s allegations that his trial defense counsel were ineffective in failing to investigate alleged unlawful command influence in the preferral process. SeeUnited States v. Ginn, 47 M.J. 236(C.A.A.F. 1997). Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL BY HIS COUNSEL FAILING TO INVESTIGATE ALLEGED UNLAWFUL COMMAND INFLUENCE IN THE PREFERRAL PROCESS.

Members problems

May 18, 2016 | The Law Office of Philip D. Cave

The members selection process is often at issue in a court-martial. One of the common concerns is the selection based purely on rank–usually the very senior. So, CAAF is about to enter the discussion again based on a grant yesterday.

No. 16-0391/MC. U.S. v. Emmanuel Q. Bartee. CCA 201500037. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

THE SYSTEMATIC EXCLUSION OF INDIVIDUALS BY RANK FROM THE MEMBER-SELECTION PROCESS IS PROHIBITED. HERE, THE MILITARY JUDGE DISMISSED THE PANEL FOR VIOLATING ARTICLE 25, UCMJ, BUT THE CONVENING AUTHORITY RECONVENED THE EXACT SAME PANEL THE SAME DAY. IS THIS SYSTEMATIC EXCLUSION BASED ON RANK REVERSIBLE ERROR?

Troubling, very troubling

May 16, 2016 | The Law Office of Philip D. Cave

The CAAF has decided United States v. Rogers, __ M.J. ___ (C.A.A.F. 2016) today.

The issue under consideration was a challenge to a member–the senior member–for implied bias that was (as CAAF now says, wrongly) denied by the military judge. The issue and decisions are not so troubling; the whole question of challenges to members is quite common and should be pretty well understood.

What is most troubling however–AGAIN–is the basis for the challenge and the continuing false and misleading information given out in sexual assault training!

New issues

May 14, 2016 | The Law Office of Philip D. Cave

The Court of Appeals for the Armed Forces has been active recently in a number of grants of review. What is noteworthy has been the grant of three cases in which it was the client who raised an issue through a United States v. Grostefon pleading.

This confirms my own thought that Grostefon issues ought to be raised.

No. 16-0229/AF. U.S. v. Ellwood T. Bowen. CCA 38616. 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 specified by the Court:

Best practices

May 14, 2016 | The Law Office of Philip D. Cave

Friend and colleague Cully Stimson has a piece on military justice practitioner professionalism, similar to some others he has put out recently.

He is right on.

Of course this is nothing new. I came on active duty as a navy judge advocate in January 1908. The topics Cully talks were a topic then and have been a frequent topic all of the years of my active duty service through today in a civilian military law practice.

A decision from the 10th that might be applicable to military parolees

May 11, 2016 | The Law Office of Philip D. Cave

There are two ways a military prisoner gets out: serve to their minimum release date or get parole. Either way, the person is going to be placed into a strict form of post-release conditions. For those who get to their MRD they will go into the Mandatory Supervised Release Program.

MSR (Mandatory Supervised Release) is very similar to parole. Individuals released on MSR must adhere to the conditions of release and are under the direct supervision of a parole/probation officer. Individuals released via MSR remain under supervision and must abide by all conditions of release for the full length of their sentence unless a portion of the sentence has been remitted by the Board. After successful completion of MSR, individuals are released from supervision and have fully served their sentence. An individual who violates the conditions of MSR is subject to sanctions for misbehavior that range from warnings to revocation of MSR and return to military confinement.

The individual on parole and MSR is under the direct supervision of a United States Probation Officer (USPO) until the full sentence has been served or the Army Clemency and Parole Board remits the remaining portion of his sentence. The difference between the two is an individual is eligible for parole after serving one-third or more of his/her sentence, while an individual released on MSR is released when he has served until his minimum release date and has submitted an acceptable release plan. Failure to provide an acceptable release plan could require the individual to serve his full sentence in confinement.

Pay issue on rehearing

May 10, 2016 | The Law Office of Philip D. Cave

You are confined, your case is appealed, your case is reversed and a new trial ordered.

You will stay in confinement–pretrial confinement.

But what about all the pay you lost while confined.

Change in the offing-again

May 10, 2016 | The Law Office of Philip D. Cave

Practitioners of military justice have been dealing with change over the last years due primarily to different approaches to sexual assault cases. Friend and colleague Cully Stimson has a published piece from his and his organization’s perspective. Take a look.

The 2015 Report of the Military Justice Review Group: Reasonable Next Steps in the Ongoing Professionalization of the Military Justice System

By Paul Larkin and Charles “Cully” Stimson

All too common, and potentially applicable to military investigators

May 9, 2016 | The Law Office of Philip D. Cave

The Guardian reports, Detective criticised for ‘getting too close’ in alleged rape case, 9 May 2016.

A senior judge has criticised a police detective and the Crown Prosecution Service for their handling of an accusation of gang rape after the case against four young men collapsed just as their trial was due to begin.

Judge Jamie Tabor QC said DC Ben Lewis of Gloucestershire police had got too close to the complainant and did not understand his job properly.

Why worry what’s on your phone

May 8, 2016 | The Law Office of Philip D. Cave

“Washington’s Supreme Court has thrown out the convictions of three men in what police called a gang-related shooting, finding among other things that music on one defendant’s phone was not evidence of gang ties.”

That’s the headline from the Seattle Times.

The slip opinion in State (Washington) v. Deleon is here.