Court-Martial Trial Practice Blog

French leave

November 12, 2014 | The Law Office of Philip D. Cave

Global Miliary Justice Reform blog brings us news of action in Europe in regard to a U.S. deserter seeking refugee status in Germany – he was avoiding deployment to the AOR.

On 1 January 1977, President Carter pardoned a large number of civilians who had gone to Canada to avoid the draft. The pardon did not extend to deserters, approximately 1000. Many had fled to Canada and were well received there.

During the more recent deployments to Iraq and Afghanistan a number of U.S. military personnel took French leave to Canada, although not solely to Quebec province. Several succeeded in being allowed to remain. Canada must be an interesting place – remember the recent incident of some Afghani officers being among several going AWOL to Canada while here on an educational cruise. As noted below, the Canadian courts have nixed refugee claims of U.S. military personnel.

Transparency

November 11, 2014 | The Law Office of Philip D. Cave

I was at a conference this weekend on global issues of military justice. Again this lingering issue of transparency came up.

My friend and colleague Gene Fidell at Global Military Justice Reform, has found a couple of gems.

You can find information about the internal workings of the Army trial judiciary at this link, or by typing “Standing Operating Procedures” into your Google search bar.

Bilged by a marine

November 10, 2014 | The Law Office of Philip D. Cave

Another of my ongoing noting of civilian cases which reference or rely upon military appellate decisions. I do this partly because it is an example of transparency and why it is needed in the military. When using Lexis or other search functions you are going to come up with military cases – if you have the access.

In Wilson v. United States, No. 13-CM-564, (D.C. Court of Appeals, 6 November 2014), the appellant sought reversal based abuse of discretion in failing to suppress evidence gained after an illegal arrest.

The court denied the appeal, and in the process cited United States v. Marine, 51 M.J. 425 (C.A.A.F. 1999) to support its decision. Yes, the accused in Marine was a marine.

Why have courts-martials-a worth the read

November 10, 2014 | The Law Office of Philip D. Cave

Professor Schlueter takes a stab at answering the question.

David A. Schlueter, The Military Justice Conundrum: Justice or Discipline?, 215 MIL. L. REV. 1 (2013).

Why even ask the question let alone seek an answer. Well it depends on where you stand on the current issue of a commander’s authority over courts-martials. If you want to maintain the current system you have to counter those who argue for change. If you want change you have to convince commanders their ability to pursue the mission will not be compromised because of an inability to maintain discipline.

Free and unfettered speech-not

November 10, 2014 | The Law Office of Philip D. Cave

The silly political season has passed for a short period of time. Bet’s are on now for the presidential silly season having started, etc.

During the campaign of now senator elect x, the issue of her political statements and her reserve officer obligations came up. That is an interesting topic of discussion. Before entering the discussion I’d first recommend reading “Odd Clauses;” then the actual text of Article 88,UCMJ,and then some other cases on what it means to be an ‘officer.’ under the constitution, etc.

By serendipity I’d been put onto Odd Clauses by a friend and had read it after the x issue arose. And I had completed the first chapter when I learned Oklahoma has apparently amended its constitution to allow legislators to be members of the armed forces, which a U.S. elected official maybe cannot. See Jay Wexler, The Odd Clauses: Understanding the Constitution through Ten of Its Most Curious Provisions, (2012). Anyway.

Worth the read

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

Each week CrimProfBlog publishes the top ten downloaded articles. Here are three that may be useful to military justice practitioners.

Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team

Jonathan Abel, Stanford Law School – Constitutional Law Center

Ban the ban on extrinsic impeachment evidence

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

Professor Imwinklried has an excellent article advocating banishment of the ban on extrinsic evidence to impeach under Federal (Military) Rule of Evidence 608(b) (MRE). Prof. Imwinkleried questions why the ban is necessary and may in fact encourage perjury on the part of a testifying witness.

Professor Kevin Cole has an excellent summary of the article at CrimProfBlog.

Edward J. Imwinkelried, Formalism versus Pragmatism in Evidence: Reconsidering the Absolute Ban on the Use of Extrinsic Evidence to Prove Impeaching, Untruthful Acts that Have Not Resulted in a Conviction, UC Davis Legal Studies Research Paper No. 396, University of California, Davis – School of Law, September 14, 2014.

Being drunk and being incapacitated aren’t the same

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

Being drunk and being incapacitated aren’t the same – no matter how hard military sexual assault trainers try to convince you otherwise. Such training is not just wrong – it is – IMHO – knowingly false.

Which brings us, finally, to the drunk sex issue. So, is Sokolow suggesting that all women who say they were raped while they were drunk were not really raped? He is not. “If there’s a no, I don’t care if there’s alcohol involved, it’s rape. What I’m saying is the fact that a woman was drunk can’t be the sole criteria for whether she was raped or not,” Sokolow explains, “and frankly, a lot of schools were getting this wrong. There is a vast difference between drunk and incapacitated.”

Brett Sokolow, Meet the Man Telling Colleges How to Fix Their Rape Problem, The Cut, 21 October 2014.

Prosecutorial error and best practices

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

It’s never too early to plan for interesting upcoming events. So, you ought to set-aside 12-13 June 2015, especially if you will be in the Arlington, VA area on those days.

The Center for Prosecutorial Integrity will have its Second Innocence Summit.

Proceedings will take place at the Crowne Plaza Hotel, Washington National Airport, 1480 Crystal City Drive, Arlington, VA 22202.

IAC by not filing motions

October 18, 2014 | The Law Office of Philip D. Cave

Can a failure to file a pretrial motion equal ineffective assistance of counsel? The BLUF is yes in some cases. In some instances I have argued IAC on appeal for failing to make a meritorious motion. The NMCCA has issued an interesting opinion in United States v. Spurling, in which they discuss this important issue. The opinion appears to be an en banc one although not labeled as such – Sr. Judge Ward writes for a majority of five, with three dissenters in an opinion written by Judge King. The issue of IAC for failure to raise a pretrial motion is neither novel nor rare. Many of my appellate clients raise a question about why the defense counsel didn’t fil a particular motion. I am about to file one in a case (citing United States v. Grostefon) where the client complains that the defense counsel did not file a motion to dismiss certain charges. A more common issue is a motion to suppress, or speedy trial, or UCI.

Spurling claimed IAC because his counsel did not litigate his admissions. Interestingly both counsel admitted they didn’t even catch the issue: [Counsel] failed to “recognize the issue based on [her] lack of experience, the work load at the time, and never having argued an Article 31 issue[.]”
Capt B concurs, stating that had the issue occurred to him “[he] would have proposed filing it.”