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.
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
“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.
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.
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).
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.
The military SVC programs have been ongoing for a little while. So some signs of the good and bad are starting to show. It is too early to tell if the issues are start-up issues or long term fixes, or cavitations or super-cavitations. One aspect to be expected and not wholly rejected is alleged victims having more of a say in what happens in a case. But how far can a victim and the SVC go in dictating what happens.
My good friend Dew_Process brought an Indiana professional discipline case to my attention and it is worth noting. The issue for the prosecutor In re Flatt-Moore, No. 30S00-0911-DI-535 (Ind. January 12, 2012), was an allegation that she surrendered her discretion as a prosecutor during pretrial negotiations, to the victims money demands. The chief prosecutor had an established policy that they would not agree to a pretrial agreement unless both the police and victims agreed.
During a disciplinary hearing the IO found that the policy did not require or give the victim the right to dictate any restitution amount. The IO found that the prosecutor had engaged in conduct prejudicial to the administration of justice. That is found in Rule 8.4(d) of the Indiana rules of professionalism. The military Services follow the ABA Model Rules of professionalism, as published in Service regulations. The ABA rule 8.4(d) is the same as that in Indiana. The Indiana court found the prosecutor had erred and violated the rule, and the issued a public opinion.
No. 14-5007/AF. U.S. v. Steven S. MORITA. CCA 37838. Review granted on the following issue:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT A RESERVIST CAN CREATE COURT-MARTIAL JURISDICTION BY FORGING ACTIVE DUTY ORDERS AND/OR INACTIVE-DUTY TRAINING ORDERS AND BY FINDING THAT COURT-MARTIAL JURISDICTION EXISTED FOR EACH 120-DAY PERIOD LISTED ON THE THREE APPLICATIONS FOR MPA MAN-DAY TOURS.
You can see an analysis of the case status here.
On occasion I note civilian court opinions that reference or rely on military appellate case law. In my view, because of technology we see more courts, especially federal courts, cite to military appellate case law. In United States v. Buchanan, the accused sought to prevent a guardian ad litem (GAL) from filing motions. The court denied the accused’s motion, and in the process cited to LRM v. Kastenberg, 72 M.J. 364, 358 (C.A.A.F. 2013).
The Military Judge’s Benchbook (MJBB) is the bible for how a military judge will instruct the members of your court-martial under the UCMJ. Your military defense lawyer should be well versed in this book and these instructions. The military judge will tell the members what elements of the crime must be proved beyond reasonable doubt; she will tell them about how they may consider evidence presented in court; and she will tell them the voting procedures they must follow to ensure a secret written ballot without undue command influence.
Military appellate courts are not enthused with deviations from the MJBB, even though it is quite possible to do that. Oddly, the military court of criminal appeals allow for minor deviations and don’t actually require exacting compliance with the MJBB. See for example, United States v. Bigelow, 57 M.J. 64 (C.A.A.F. 2002). On the other hand the Court of Appeals for the Armed Forces {CAAF) has cautioned against significant deviations from the MJBB, unless adequately explained on the record. United States v. Rush, 54 M.J. 313 (C.A.A.F. 2001). That’s what happened with the litigation over challenges to Article 120, when a military judge ignored the law and also the MJBB, and advised the members that the accused did not have any burden to prove consent.
It may not matter if the judge does not follow the MJBB when instructing the members. For example in a recent case the Court of Appeals for the Armed Forces (CAAF) decided that the judge had made a mistake in not instructing on a defense, but that the error was harmless. We don’t need to go too deep into this area of trial practice; this is something your appellate military defense lawyer and trial military defense lawyer should know about and discuss with you.
Court-Martial Trial Practice Blog
