Court-Martial Trial Practice Blog

DOD IG semiannual report

July 7, 2015 | The Law Office of Philip D. Cave

TheDOD IG Semiannual Report to the Congress has been issued for the reporting period of October 1, 2014, to March 31, 2015 is on line. The report complies with a requirement of the Inspector General Act of 1978, as amended. The report is a summary.

DoD IG issued 103 reports, identifying $101.1 million in questioned costs and $261.6 million in funds put to better use.
$41.1 million in financial savings based on management-completed corrective actions to reports issued during this and previous reporting periods.

Today is leg day

July 6, 2015 | The Law Office of Philip D. Cave

6 June is Leg Day for Navy Appellate Defense.

Happy leg day all.

CAAF on jurisdictio

July 6, 2015 | The Law Office of Philip D. Cave

United States v. Nettles decided by CAAF today.

We granted review to determine whether the Air Force had personal jurisdiction over Appellant at the time of his courtmartial. We hold that it did not, and that therefore the judgment of the United States Air Force Court of Criminal Appeals (CCA) is vacated, the findings and sentence are set aside, and the case is dismissed.

Worth the read

July 6, 2015 | The Law Office of Philip D. Cave

Michael G. Heyman, Professor Emeritus, The John Marshall Law School (Chicago) .

Due Process Limits on Accomplice Liability

In a prior piece in this journal, I noted some disturbing developments in the law of

CAAF’s decision in Woods does not support MJIA

June 26, 2015 | The Law Office of Philip D. Cave

The Real Cost Of Having Commanders In Charge Of Military Justice

This article has appeared in Task & Purpose as a result of United States v. Woods, decided by the Court of Appeals for the Armed Forces on 18 June 2015.

Incredibly, a senior naval officer was appointed to be the president of a court-martial panel when in a questionnaire prepared when first told she’d be a court-martial member in the future, the member answered thus about the presumption of innocence.

An interesting perspective

June 25, 2015 | The Law Office of Philip D. Cave

Protect Our Defenders (POD) has this to say about the recent vote on Sen. Gillibrand’s Military Justice Improvement Act.

Last week, 50 U.S. Senators stood with survivors and voted for Senator Gillibrand’s Military Justice Improvement Act (MJIA).

For two years in a row, a majority of the Senate has told the Pentagon to fix the arbitrary and biased military justice system. Unfortunately, this common-sense legislation was blocked with a threat of a filibuster, as it was last year, requiring 60 votes to pass instead of a simple majority.

Opening the door-or keeping it closed

June 25, 2015 | The Law Office of Philip D. Cave

As a defense counsel, I’m always looking for ways in which the prosecutor has opened the door to relevant evidence, but which for some reasons has been excluded or can’t be offered. MRE 412 comes to mind, as happened to me at trial in United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011).

But, BUT, as a defense counsel, I’m equally conscious of how I can do something to open the door. I might have successfully litigated a motion in limine to exclude evidence. But now I have the key and have to be careful I don’t give it to the prosecution to use.

There are other ways the defense can open the door to otherwise inadmissible evidence. United States v. Martin just decided by NMCCA is a case in point. Although the appellate court ultimately found the proescutions questions plainly wrong, the damage was done and they court found no prejudice.

Manual for Courts-Martial-new

June 23, 2015 | The Law Office of Philip D. Cave

Here is a link to the MCM changes effective 17 June 2015.

I wonder if Sen. G knows?

June 4, 2015 | The Law Office of Philip D. Cave

A former client directed me to the Air Force Reporter, Vol. 42, No. 1 (2015).

In reading about an aspect of his case, my eyes rolled down to this. It is on page 50.

CASE 2 Prior to a court-martial, a Special Victims’ Counsel (SVC) advised a client that the SVC would not be attending the trial in person due to a personal conflict, but that if the client needed anything to let the SVC know. The SVC did not notify supervision and did not make arrangements for another SVC to attend the trial in their absence. The court-martial started with several motions that involved the client. Following the motions hearing, the client contacted the SVC and requested that the SVC attend the remainder of the court-martial. The SVC attended the remainder of the court-martial proceedings.

Prosecution misconduct

June 2, 2015 | The Law Office of Philip D. Cave

We often hear of prosecution misconduct going unchallenged or undisciplined. Two events this week are noteworthy though in efforts to hold prosecutors accountable.

Armstrong v. Daily, et. al., is a case out of the Seventh. The M-W Journal Sentinal extracts this:

He brought a civil rights suit against the prosecutor on his case, John Norsetter, and two crime lab workers, Karen Daily and Dan Campbell. All three sought to have Armstrong’s suit dismissed on immunity grounds, but the 7th Circuit U.S. Court of Appeals affirmed the trial judge’s refusal to grant that request: