Court-Martial Trial Practice Blog

If

January 30, 2016 | The Law Office of Philip D. Cave

“If we prioritize conviction rates rather than having just verdicts, and if we vote that way in elections, this problem [of unfair, biased criminal prosecutions] will just continue.”

by Todd VanDerWerff on January 11, 2016, Netflix’s Making a Murderer: the directors explain what many have missed about the series. Vox.com, January 11, 2016.

Prosecutorial bias permeates the American judicial system. Prosecutors hell-bent on victory often directly or indirectly prod investigators and experts to get the results they want. It’s refreshing to see a judge recognize this in a well-reasoned, groundbreaking decision.

WTR-Military Law Review articles

January 17, 2016 | The Law Office of Philip D. Cave

Barracks, Dormitories, and Capitol Hill: Finding Justice in the Divergent Politics of Military and College Sexual Assault
Rudderless: 15 Years and Still Little Direction on the Boundaries of Military Rule of Evidence 513
Open-Ended Pharmaceutical Alibi: The Army’s Quest to Limit the Duration of Controlled Substances for Soldiers

A Better Understanding of Bullying and Hazing in the Military

WTR-Military Law Review

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

Out of Focus: Expanding the Definition of Child Pornography in the Military

The Code Indicted: Why the Time is Right to Implement a Grand Jury Proceeding in the Military

Sexual assaults and improper relationships

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

The Army Court of Criminal Appeals has an interesting opinion and reminder about the relationship of improper relationships when there is an allegation of sexual assault.

United States v. Delgado, ARMY 20140927 (A. Ct. Crim. App. 6 January 2016).

AR 600-20, para. 4-14b. prohibits relationships between soldiers of different ranks if they:

Huuum.

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

Is this agent still investigating? Does this agent have any pending investigations or appearance as a witness in a UCMJ case?

A man arrested just before Christmas for allegedly pulling out his gun at a restaurant because he didn’t like the bill is a Special Agent for the U.S. Army’s Criminal Investigation Division.

Curtiss Davis is also accused of exposing himself to a female employee and demanding a sex act.

Military Justice Review Group-Part 1-UCMJ

January 6, 2016 | The Law Office of Philip D. Cave

Thus begins a review of the Military Justice Review Group (MJRG) report Part 1. My comments will be in no particular order.

Confinement to Bread & Water

Currently, a person can be confined for up to three days on bread and water rations, under certain circumstances. The MJRG recommends removing this as a punishment. They do not say why, other than to suggest that:

Bergdahl-trial item 1

January 5, 2016 | The Law Office of Philip D. Cave

The pretrial appellate litigation in Bergdahl is effectively over–charges are referred to trial and he has been arraigned.

For those interested in the litigation to get access to UCMJ art. 32 hearing documents, I have collated the documents here.

There is a new effort to get quicker media access to trial documents from the Hearst Corporation. See, Diego Ibarguen/COL Nance, MJ, ltr of 4 Jan 2016.

Who prosecutes

January 5, 2016 | The Law Office of Philip D. Cave

We are all familiar with the interactions that can occur between the military and civilian prosecutors when deciding who will prosecute a servicemember for crimes in the “civilian” community. Sometimes the result is a civilian prosecution and the military takes adverse administrative actions, sometimes the civilians hand over the case to the military, and sometimes both proceed. Here is an interesting news item from Washington State.

A former soldier accused of murdering his wife can’t get a fair trial because the Pierce County Prosecutor’s Office gave confidential police records to the Army as part of a “scheme” to help the military discharge him, a defense attorney alleged in court Monday.

That argument failed to persuade Superior Court Judge Jack Nevin to halt the prosecution of the former Spc. Skylar Nemetz, but it opened a window on how Pierce County and Joint Base Lewis-McChord decide how to hold soldiers accountable for offenses committed in civilian communities.

Sue her–ahem, them

January 1, 2016 | The Law Office of Philip D. Cave

The interesting case of West v. Rieth, et. al. has come across the transom and it’s worth the read.

West alleges that the Federal Defendants, who with one exception were also U.S. Marine Corps service members at all relevant times, conspired to lodge false complaints and accusations of sexual harassment and sexual assault against him. According to the complaint, such false allegations were personally motivated by a desire to remove West and another individual from their supervisory positions and to obtain favorable transfers.^[3]Investigations ensued, and West was court-martialed with respect to the allegations lodged by Rieth, Parrott, and Allen. The allegation that West raped defendant Johnson was not part of the court-martial because an investigator found that such allegation was not credible.^[4]

At the court-martial in November 2014, defendants Rieth, Parrott, and Allen testified under oath against West, which testimony West alleges was false.

Overbreadth in sexual assault laws

January 1, 2016 | The Law Office of Philip D. Cave

One of the discussions ongoing about military sexual assault cases is the breadth of conduct meant to capture, and potential ambiguities in how the law seeks to define a crime versus boorish or otherwise inappropriate behavior. Here is an interesting piece based on developments in Canada.

Implied Consent & Sexual Assault: Introduction, Michael Plaxton, University of Saskatchewan – College of Law, November 27, 2015

Introductory Excerpt from Implied Consent and Sexual Assault: Sexual Autonomy, Intimate Relationships, and Voice (McGill-Queen’s University Press, 2015) (Forthcoming).