Court-Martial Trial Practice Blog

They’ve already made up their minds

September 1, 2014 | The Law Office of Philip D. Cave

How many times during a trial do you try to guess what the members are thinking, and what their decision is – I would suggest we do that many times throughout a trial. We do this because we are responding to a client’s comment about a look, a question, or the demeanor of one or more members. We do this to try and sense how our case is going for tactical reasons. We do this because we hope to gain some “insight” on the next steps. A pretty common reason is whether or not we feel the client needs to testify.

Of course we can never know what the members are really thinking. During the occasional after court talk it becomes clear that what we thought the members were thinking was not what they were thinking, etc., etc., etc.

So, it’s a worthwhile effort in situational awareness to try and monitor the members. But what happens if their thinking becomes more obvious or blatant – or possibly so. At times, I have addressed the issue of the members having already decided the case or evidenced a bias because of a question one of them has asked.

Prosecutors favorite-we’ve always done it that way

August 30, 2014 | The Law Office of Philip D. Cave

Friend Christian Capece liked a post on Linked-In

“The most dangerous phrase is, “we’ve always done it that way.””

That amused me because it immediately brought to mind United States v. Fosler.

The ambiguity of consent or lack of consent in sexual assault cases

August 29, 2014 | The Law Office of Philip D. Cave

The title of the article which is a must read: Honest False Testimony in Allegations of Sexual Offences.

An interesting military medical benefits case

August 29, 2014 | The Law Office of Philip D. Cave

Cronin v. United States, __ F.3d ___ (Fed. Cir. Aug. 28, 2014), deals with claims for injuries sustained during or aggravated by conditions of service. It is noteworthy to me because, among a number of significant claims of physical injury, the plaitiff raises issues of PTSD for which she was not to be compensated. She attributes the PTSD partly to, multiple physical and sexual assaults, stalking, and extreme sexual harassment.

The Court of Claims found the PTSD claim without merit, and the appeals court affirmed.

Up periscope

August 29, 2014 | The Law Office of Philip D. Cave

For some time now each of the Services have been undergoing a draw-down.

Naturally, you would think that they would cut those with significant misconduct or performance issues, and that there should be any number who would fit into that category.

Here is an interesting piece about some of the reasons most Army majors have been let go.

Men are victims too

August 28, 2014 | The Law Office of Philip D. Cave

Domestic violence is bad. But I would suggest that the issue is normally only dealt with as a women’s issue.

This report should cause people to think – just a little bit – that men are not always the perpetrators, and that “alway believe the victim” – read the woman, training is flawed.

One-third of domestic violence victims in active-duty military families are men

Political prosecutorial overreach

August 16, 2014 | The Law Office of Philip D. Cave

“That the power to prosecute is a fearsome thing, and, when employed as political tool, is the quick road to tyranny.”

Bill Otis, Politics & Prosecution, a Toxic Brew, 16 August 2014.

I am not a libertarian, but I am one of the defense counsel and independent liberals Mr. Otis will frequently berate, sometimes with rather over the top hyperbole. I read crimeandconsequences regularly because many posts raise important questions, but you have to take note of the style. But on this toxic issue we are of the same mind; both as to the Perry prosecution issue and also the abuse of power.

The best evidence is the best evidence

August 9, 2014 | The Law Office of Philip D. Cave

Prof. Colin Miller, one of my favorite bloggers on evidence, addresses a best evidence issue raised in People v. Haggerty, No. 129, (N.Y. 2014).

Haggerty was accused of defrauding Mayor Bloomberg. During presentation of the prosecution case they called a witness to testify about the contents of a trust fund through which the fraud was alleged to be done.

For the military defense lawyer an immediate lesson is that the defense failed to object at trial. When litigating a court-martial under the UCMJ, all should be aware that a failure to object to evidence places the appellate military defense lawyer in the difficult position of having to argue harmful plain error. In a footnote to United States v. Rankin, 64 M.J. 348, 351, n.3 (C.A.A.F. 2007), the court noted the numerous objections to documentary evidence citing MRE 602, authenticity, and best evidence. But they were not raised on appeal so the court did not address them. Trial defense counsel should not be dissuaded from objecting. As a military appellate defense counsel I much prefer to have the objections – for obvious reasons.

Worth the read

August 5, 2014 | The Law Office of Philip D. Cave

has published a symposium – articles related to military justice, specifically sexual assault cases. Both sides will find something in the articles. Of particular interest are two articles: Major Seamone’s article about secondary affect on military justice practitioners from over exposure to sexual assault cases, and Colonel Schenk’s disagreement with the statistics and compilation of sexual assault statistics.

Major Evan R. Seamone, Sex Crimes Litigation as Hazardous Duty: Practical Tools for Trauma-Exposed Prosecutors, Defense Counsel, and Paralegals, 11 Ohio St. J. Crim. L. 487 (2014).

Lisa M. Schenck, Informing the Debate About Sexual Assault in the Military Services; Is the Department of Defense Its Own Worst Enemy?, 11 Ohio St. J. Crim. L. 579 (2014).

Providence shines down or upon

August 2, 2014 | The Law Office of Philip D. Cave

No this is not a comment on T. Scott McLeod’s book. Nor is it a comment on how to make providence work in your favor, although by the results it could be.

Oh, sorry. Ya gotta read United States v. Stout, decided by ACCA on 25 July 2014.

The accused plead guilty to abusive sexual contact with a 14 year old, indecent liberty with a child, and possession of child porn, all violations of the UCMJ and prosecuted at court-martial. The MJ gave him a BCD and 8. ACCA determined the MJ erred in accepting any of the pleas and set aside the findings and sentence.