Court-Martial Trial Practice Blog

When process is due–you might get a little more

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

[D]istrict courts generally enjoy a fair amount of discretion in choosing the procedures they find most helpful for resolving pretrial motions, including whether to take the matter on the briefs, hear oral argument, or hold an evidentiary hearing. And often enough courts will choose to err on the side of granting more process than might be strictly necessary in order to ensure not only that justice is done but that justice is seen to be done. Whether because of intuition born of experience that a meritorious issue may lurk in an imperfectly drawn application, or simply out of a jealous wish to guard individual rights against governmental intrusions, judges sometimes allow a claimant a fuller hearing than the law demands. In a democratic legal order built on the promise of due process and the vindication of individual rights that’s often thought laudable or at least generally permissible — and in any event not the stuff of automatic reversal.

United States v. Herrera, __ F.3d ___ (10th Cir. 2015).

USvPlant oral argument

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

Marquette University Law School will host oral arguments for the court martial appeal of a U.S. Air Force sergeant accused of sexually assaulting two girls and endangering his baby son.

So says the Wisconsin Bar Journal.

Here is an link to a preview by a colleague.

Can you succeed on appeal in a sexual assault case?

April 3, 2015 | The Law Office of Philip D. Cave

The question is often asked of me–can we win on appeal, will the appellate courts give a fair hearing and review.

In United States v. Soto, the Air Force Court of Criminal Appeals (AFCCA) reviewed the factual sufficiency of appellant’s conviction for rape and any lesser included offenses.

A military judge accepted the appellant’s pleas of guilty to two specifications of violating a lawful general regulation, one specification of making a false official statement, and two specifications of adultery.

DD214 numbers

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

A sophisticated employer knows how to interpret the numbers and language in the DD214. The codes are easily findable on the internet. This creates an issue with coding for early separation due to draw-down measures. So the following came over the transom.

DD 214 SEPARATION PROGRAM DESIGNATOR NARRATIVE

The DD Form 214, which is issued to all servicemembers upon discharge from military service, includes the discharge status (honorable, other than honorable, etc.) as well as a Separation Program Designator code and narrative reason for the separation, such as Force Shaping (Board Selected), Reduction in Force, Insufficient Retainability (Economic Reasons), or Early Retirement.

Heads up on soliciting donations-recruiters-instructors beware

March 30, 2015 | The Law Office of Philip D. Cave

On 28 January 2015, DoD issued an instruction (DODI 1304.33) protecting against inappropriate relationships during recruiting and entry level training.

Paragraph 1.a.(1)(k) of Enclosure (3) of this instruction expressly prohibits recruiters and trainers providing entry level training from soliciting donations from a recruit or trainee.

Apparently there have been questions concerning the impact of this instruction on various fund drives such as the NMCRS Active Duty Fund Drive (ADFD), and the Combined Federal Campaign.

Is there an SVC crisis?

March 29, 2015 | The Law Office of Philip D. Cave

I am for (and against) the SVC program. I am mostly for it because it is necessary. Over the years and prior to the Air Force start there were regulations in place that required the trial counsel to inform the “victim” of what was happening in the case and get their input. The trial counsel were not doing the job and in some instances deliberately refused to follow the guidance. By example, a trial counsel who refuses to let the complaining witness know about pretrial negotiations, and who got upset when I gave the CW a copy of the pretrial agreement offer. Which leads to two reasons I’m not necessarily in favor of the SVC program.

Because the trial counsel routinely failed in their requirements, I got in the habit of asking the CW during my interview if they “knew what was going on?” They’d say “no, not really.” I would then take the opportunity to tell them what was going on. I would tell them that I was the defense counsel telling them this and they are welcome to confirm with the trial counsel. At that moment the interview had some lessened tension. In several cases I’m convinced that my “helping” the CW understand what was going caused her to modulate anger against my client and it may have helped later. So now that’s a lost opportunity.

I do have some concerns about the potential for SVC’s exceeding the scope of their responsibility to their client and the court. Whether or not those concerns are supported will be open to discussion for some time to come. There is a potential concern for coaching as opposed to preparing a CW for testimony. Trial and defense counsel prepare but don’t (shouldn’t) coach a witness. It’s perfectly proper to prepare for testifying. In one particular case I was concerned about a SVC who objected to questions unrelated to MRE 412 or 513 during an Article 32. That’s not their place or responsibility.

Worth the read

March 10, 2015 | The Law Office of Philip D. Cave

A couple of items have come across the transom today which are worth the read to military practitioners.

James E. Baker, Is Military Justice Sentencing on the March? Should it be? And if so, Where should it Head? Court-Martial Sentencing Process, Practice, and Issues, Fed. Sentencing Rep. Dec. 2014, at 72-87. This items comes from the current Chief Judge, the Court of Appeals for the Armed Forces. His term of office will expire shortly, but the name of a new judge is not yet published. By tradition, the next senior judge will fleet up to become the chief judge.

Col Robert F. Holland, USA, JA (Ret), Unique Procedural Aspects of Court-Martial Sentencing by Jury (sic), 27 Fed. Sentencing Rep., No. 2, Dec. 2014.

Maoist indoctrination?

March 9, 2015 | The Law Office of Philip D. Cave

When [persnonnel] hear nothing but one side of controversial issues for their entire time[], what you have is not true education but Maoist indoctrination in the guise of education. When the academic consensus on any issue with political overtones can be predicted with 100% certainty merely by identifying the Politically Correct position, the consensus no longer means anything.

The state of legal scholarship

Quick note about Quick sentence reassessment

March 9, 2015 | The Law Office of Philip D. Cave

There is a conflict of opinion concerning the authority of this Court to reassess sentences. The language of Article 66(c), UCMJ, its legislative history, and the decision of the Supreme Court in Jackson v. Taylor, 353 U.S. 569, 1 L. Ed. 2d 1045, 77 S. Ct. 1027 (1957), give this Court the responsibility and unfettered authority to reassess a sentence, even after modifying the approved findings. On the other hand, our superior court holds that the service courts may only reassess a sentence after a finding of prejudicial error if the court was convinced that the sentence, as reassessed, is not greater than the sentence that the original court-martial would have imposed. United States v. Eversole, 53 M.J. 132 (2000); [11] United States v. Taylor, 47 M.J. 322, 325 (1997); United States v. Peoples, 29 M.J. 426 (C.M.A. 1990); United States v. Sales, 22 M.J. 305 (C.M.A. 1986); United States v. Suzuki, 20 M.J. 248, 249 (C.M.A. 1985). In United States v. Sills, 56 M.J. 556, 571 (A.F. Ct. Crim. App. 2001), set aside on other grounds, No. 02-0048/AF (15 Jan 2002), we analyzed these conflicting precedents, and HN8 concluded we are bound by the will of Congress and the decision of the Supreme Court. While the Manual for Courts-Martial gives this Court the authority to order a new hearing on sentence, it does not require us to do so. R.C.M. 810(a)(2) and 1203(c)(2).

United States v. Roper, 2002 CCA LEXIS 24, 10-11, 2002 WL 169256 (A.F.C.C.A. Jan. 24, 2002).

In United States v. Quick, 74 M.J. 517 (N-M. Ct. Crim. App. Oct. 31, 2014),[1] No. 15-0347/MC. CCA 201300341, (C.A.A.F. 30 January 2015),[2] the Judge Advocate General certified the following issue to the Court of Appeals for the Armed Forces (CAAF).

Recovered memory-or-making it up?

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

The Navy-Marine Corps Court of Criminal Appeals recently, in United States v. D.W.B., __ M.J. ___ (N-M Ct. Crim. App. 2015), had to decide “a complex and controversial topic: the admissibility of a witness’s testimony regarding memories recovered through a psychotherapeutic approach known as Eye Movement Desensitization and Reprocessing (EMDR).” Slip op. at 2.

BLUF: the military judge did not abuse his discretion in concluding that KB’s testimony was the product of a tainted and highly suggestive psychological process, and therefore inadmissible.

In Coker v. Georgia, 433 U. S. 584 (1977), the Supreme Court held that the Eighth Amendment bars the use of the death penalty as punishment for the rape of an adult woman, where there is no homicide. The question was left open about a non-homicide rape of a child.