Court-Martial Trial Practice Blog

Distinguish between volition and memory-lack of memory doesn’t mean lack of volition

February 22, 2015 | The Law Office of Philip D. Cave

The version of the facts contained in the majority opinion is far more convincing than are the facts contained in the record of trial.

It is not unusual for an appellate opinion to be selective in reciting the facts of a case relevant to the decision. This can be attributed to several factors, most of the factors are benign and unintended, sometimes a cynic might argue the facts cited are deliberately selective. But here is the relevant part of the dissent for counsel’s takeaway in alcohol related sexual assault cases. The noted confusion must be addressed with the fact-finder through evidence perhaps, and certainly through argument.

It appears to me that the parties at trial misunderstood the relationships between volitional behavior, consent, mistake of fact as to consent, intoxication, and lack of memory. The question is not whether the alleged victim remembers what happened, but whether she participated in the sexual activity of her own volition at a time when she had too much to drink. Chief Judge Everett‘s concurring comments United States v. Baran, 22 M.J. 265, 270 (C.M.A. 1986), are directly applicable to this case:

Cell tower positioning

February 21, 2015 | The Law Office of Philip D. Cave

It has been some time since I’ve had a case where it was necessary to have “cell tower” evidence to “locate” the client.

Here is an interesting piece in The New Yorker.

On May 28th, Lisa Marie Roberts, of Portland, Oregon, was released from prison after serving nine and a half years for a murder she didn’t commit. A key piece of overturned evidence was cell-phone records that allegedly put her at the scene.

Collateral consequences of being Titled

February 21, 2015 | The Law Office of Philip D. Cave

As many of you know, when CID/NCIS/OSI/CGIS starts an investigation into you they make a record. The subject line is your name plus other information. This is what is know as being “Titled.”

That information is submitted to NCIC as the equivalent of an arrest – even though you were not arrested, told you were arrested, or placed in custody. The Titling, plus the taking of fingerprints and photographs gets you into the database, and you aren’t getting out for 40 years.

Here is a 2000 DoDIG report.

Overcharging conspiracy

February 21, 2015 | The Law Office of Philip D. Cave

It is routine for military prosecutors to overcharge in courts-martial. They feel the more they can pile on the worse it makes the accused look. So that’s why you might see a charge of murder along with a charge of spitting on the side-walk.

One of the areas of frequent abuse is the use of inchoate crimes – primarily here conspiracy. The Army Court of Criminal Appeals has just issued an opinion in a case I defended at trial a couple of years ago. The case was tried in 2012, and the first stage of appeal was decided in February 2015. The next stage is CAAF.

In United States v. Willis, we had objected at trial to a conviction on multiple conspiracies, but the trial judge denied our motion. The prosecution had it’s way in overcharging on this issue. But that didn’t pass muster with the appeals court. In ruling for the defense the court repeated basic principles.

Using SVC statements against. . .

February 13, 2015 | The Law Office of Philip D. Cave

Teaching point about SVC’s and how the defense may be able to use them to the benefit of the defense.

Not too long ago I had a SVC making oral argument on a MRE 412 motion.

During the course of the SVC presentation it occurred to me that she was representing facts AND statements of the complaining witness which were inconsistent with other statements of the complaining witness.

More refusniks to be deported

February 8, 2015 | The Law Office of Philip D. Cave

In August 2012, I noted a decision made by the Canadian court.

Canada has ordered the deportation of a female soldier who fled the U.S. military in order to avoid the war in Iraq, officials said Thursday. [Army Times]

Now we have this:

Soft precedent or something else

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

In this day and age you’d wonder why all appellate decisions are not “published.” Many of not all are available either to lawyers through a research service or the general public through court websites. So what’s going on; some attention is being paid to the topic of unpublished opinions.

For the non-lawyer it is important to know, whether or not you understand it, that only “published” opinions are binding precedent on the lower courts, and a matter of stare decisis for appellate courts.

PrawfsBlawg reports:

An interesting certification

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

No. 15-0347/MC. U.S., Appellant v. Christopher A. Quick, Appellee. CCA 20201300341. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHETHER PRECEDENT AUTHORIZING COURTS OF CRIMINAL APPEALS TO ORDER SENTENCE-ONLY REHEARINGS SHOULD BE OVERRULED BASED ON (A) JACKSON v. TAYLOR, 353 U.S. 569 (1957), WHICH STATED “NO [SUCH] AUTHORITY” EXISTS; (B) THE PLAIN LANGUAGE OF THE STATUTE INCLUDING THE CONJUNCTIVE “FINDINGS AND SENTENCE” IN ARTICLE 66(d) IN CONTRAST TO AUTHORITY GRANTED THE JUDGE ADVOCATES GENERAL IN ARTICLE 69(a) TO ACT WITH RESPECT TO “FINDINGS AND SENTENCE OR BOTH” AND THE CONVENING AUTHORITY IN ARTICLE 60(f)(3) TO ORDER SENTENCE REHEARINGS; AND (C) JUDICIAL ECONOMY.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before March 2, 2015.

A history note

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

Military appellate lawyers know the mantra:

This Court has an independent obligation to review each case de novo to ensure the factual and legal sufficiency of the findings. Article 66(c), UCMJ, 10 U.S.C. § 866 (2012); United States v. Turner, 25 M.J. 324 (C.M.A. 1987). In doing so, this Court is empowered to substitute its judgment for that of the trial court. Id. When deciding legal insufficiency, the test is “whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.” United States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2004). A review of legal sufficiency is limited to the evidence introduced at trial. United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993). As for factual insufficiency, “the test is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses,” this Court is unconvinced of the accused’s guilt beyond a reasonable doubt. Turner, 25 M.J. at 325; see also McMurrin, 72 M.J. at 706.

That’s the standard of review when the court of criminal appeals reviews a case.

I have to wonder

January 28, 2015 | The Law Office of Philip D. Cave

In today’s military I have to wonder what people may be thinking. Some time ago the Army had a prostitution scandal. Now apparently the Navy.

Prostitution is illegal and various acts involving prostitution are illegal under the UCMJ.

The Stars & Stripes has this report today.