Court-Martial Trial Practice Blog

By the numbers

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

DoD has published the Department of Defense Annual Report on Sexual Assault in the Military for 2015.

Of the 6,083 initial complaints filed last year, about 1,500 were “restricted,” meaning the victim was a service member who reported the assault but refused to participate in any criminal investigation and only sought healthcare and victims’ support services.

(We don’t know how many of these would be substantiated by an MCIO, and then proceed further into the process. Because there is no investigation it is unreasonable to include these cases in statistics about prosecution and conviction rates.)

Worth the Read

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

Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches, 69 Vand. L. Rev. 585 (2016)

Margaret Dodson, Bruton on Balance: Standardizing Redacted Codefendant Confessions Through Federal Rule of Evidence 403, 69 Vand. L. Rev. 803 (2016)

Clemency from the Prez.

April 28, 2016 | The Law Office of Philip D. Cave

This week, the Combat Clemency Project at the University of Chicago Law School petitioned for a Presidential Pardon on behalf of Corey R. Clagett, a former Army PFC released on March 31, 2016 from the US military prison at Fort Leavenworth, Kansas after a decade of incarceration. https://petitions.whitehouse.gov/petition/review-combat-clemency-petitions-and-pursue-military-mental-health-reform

Prosecutorial practice

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

In United States v. Mercier, __ M.J. __, No. 20160318 (C.G. Ct. Crim. App. Mar. 18, 2016) the court denied a Government interlocutory appeal of a military judge’s ruling that found that a specification was improperly referred and dismissed the specification without prejudice.

This would seem to be a perfect opportunity to take up, again, two suggested improvements to military law practice.

Let’s have the President issue an Executive Order. The Attorney General of the United States issues several manuals for U. S. Attorneys. This is guidance from HQ intended to assure some measure of uniformity among the U. S. Attorney offices throughout the nation. It is time to impose something akin to the U. S. Attorney’s Manual by executive order (in particular, 9-27.000 – Principles Of Federal Prosecution)?

A powerful reminder

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

It should go without saying that a court-martial is a most serious matter, and the requirement for proof beyond a reasonable doubt plays a vital role in the legitimacy of the military justice system. A “society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.” In the military justice system, where servicemembers accused at court-martial are denied some rights provided to other citizens, our unique factfinding authority is a vital safeguard designed to ensure that every conviction is supported by proof beyond a reasonable doubt. This authority “provide[s] a source of structural integrity to ensure the protection of service members’ rights within a system of military discipline and justice where commanders themselves retain awesome and plenary responsibility.”

United States v. Rivera, No. 38649, 2016 CCA LEXIS 92 (A.F. Ct. Crim. App. Feb. 18, 2016)(unpub.).

On the wild side and off topice

March 28, 2016 | The Law Office of Philip D. Cave

CAAF’s Daily Journal for 25 March 2016 has this entry.

No. 16-0413/AR. In re Christopher E. Strunk, Christopher B. Garvey, and Harold W. Van Allen, Petitioners. Notice is hereby given that a petition under 28 USC §1651 for writ of mandamus and injunction equity relief in the matter of the New York Republican Party POTUS Primary on April 19, 2016, and the National General Election on November 8, 2016, was filed under Rule 27(a) on March 18, 2016, and placed on the docket this 24th day of March, 2016. On consideration thereof, it is ordered that said petition is hereby dismissed for lack of jurisdiction.

Brady points

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

Courtesy of Prof. Colin Miller and his excellent evidence blog, here are some thoughts for the day on prosecutor error.

Keep this in mind when the prosecution want’s to admit documents or reports.

6th Circuit Case w/Brady Violation Based on Nondisclosure of Cover Sheet About Unreliability of Evidence

Some commentary to ALI proposed changes in sexual assault cases

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

Click to access nacdl-comments-draft-6-mpc-sexual-assault-and-related-offenses-docx-1.pdf

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2753718

Garcia not guilty on retrial

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

Can the actions of military prosecutors raise the specter of Unlawful Command Influence?

Maybe.

That conclusion can at least can be gleaned from the case of United States v. Garcia, decided in 2015 by the Army Court of Criminal Appeals. (United States v. Garcia, No. 20130660, 2015 CCA LEXIS 335 (A. Ct. Crim. App. August 18, 2015)[ https://www.court-martial-ucmj.com/files/2016/03/USvGarcia.pdf].

Sex Offender Treatment-Miramar

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

The Sex Offender program is under revision. The old sentencing requirements were 45 months to include abatement time (earned time/good conduct time/transportation time and consideration for treatment starting every quarter).

The new Sex Offender Treatment Program (SOTP) requires at least 31 months sentencing to be considered for the program. We do not advocate increasing or decreasing sentencing based on treatment requirements but in order to be eligible for SOTP the member must be sentenced to at least 31 months at time of arrival.