army Tag Archives — Court-Martial Trial Practice Blog

Government “appeals”

March 14, 2025 | The Law Office of Philip D. Cave

When the government does not like the decision of a Court of Criminal Appeals–because it favors the Appellant, the Government has an automatic “appeal.” It’s called certifying the issue. This is an example of unfairness and discrimination in the appellate process which military defense lawyers are well aware of. So, how does that work.

The general standard of review for a government certificate for review under the Uniform Code of Military Justice (UCMJ) is governed by Article 67(a)(2), UCMJ (10 U.S.C. § 867(a)(2)), which grants the U.S. Court of Appeals for the Armed Forces (CAAF) jurisdiction to review decisions of the service courts of criminal appeals (CCAs) upon certification by the Judge Advocate General (JAG) of the respective service.

Standard of Review for Government-Certified Issues

Secretarial UI+

December 22, 2023 | The Law Office of Philip D. Cave

On December 6, 2023, the Secretary of the Army, Ms. Christine Wormuth, fired Brigadier General (BG) Warren Wells, the Army’s chief prosecutor and head of the Office of the Special Trial Counsel (OSTC), for an email he had sent ten years prior while in a defense counsel role. This firing demonstrates that no military defense counsel can be certain that doing their job and defending you will not come back to haunt them down the road. It will always be in the back of their minds.

In 2013, Warren Wells was a Lieutenant Colonel and a Regional Defense Counsel supervising the Senior Defender Counsel at several Army bases and their subordinate military defense counsel. He sent an email to his Senior Defense Counsel on various defense matters that included a paragraph commenting on the pressure put on the Army by Congress and the media to send sexual assault cases to trial and then stated that they, as defense counsel were the last line of defense for the innocent. Ten years later, when Ms. Wormuth read the email, she found this sentiment so outrageous that she fired BG Wells within hours!

Today, every military defense counsel knows (especially in the Army) that something they do or say in your defense can be held against them in the years to come when they are up for promotion or in a different position as a JAG. The military branches try to have independent defense counsel while they are in defense counsel positions, but as the BG Wells story illustrates: nothing protects them when they are no longer in a defense counsel position. Your military defense counsel will hopefully do their best to represent you anyway, but he or she is not conflict-free, no matter how hard they try.

NMCCA decisions

September 3, 2010 | The Law Office of Philip D. Cave

NMCCA has released a number of decisions. Several have providency issues and issues not raised by appellate counsel.

United States v. Messias. The court set-aside a finding of guilty to because of an inadequate providence inquiry. No sentence relief granted.

While the providence inquiry establishes facts sufficient to demonstrate that the appellant drove on base and that he believed the driving to be wrongful, there are no facts developed which establish either the invalidity of the appellant’s license, if any, or in the alternative, his failure to have a valid license in his possession. We cannot infer either eventuality from this record. We are left with a substantial basis in fact to question this plea and conclude the military judge abused his discretion in accepting this plea on these facts.

Up periscope 33

May 25, 2010 | The Law Office of Philip D. Cave

Army Times reports:

A Fort Wainwright soldier is under investigation for allegedly posting a video on his Facebook site showing Iraqi children being taunted.

Navy Times reports:

New Army case on discovery

March 30, 2010 | The Law Office of Philip D. Cave

ACCA has issued an opinion in United States v. Trigueros, 68 M.J. ___ (A. Ct. Crim. App. 2010). [Post updated to address a CAAFLog point, to add some links, and try to fix some formatting.]

This case involves the common problem of discovery of a victims mental health records. There are two troubling aspects to this case: the trial counsel never made any effort to determine whether or not information responsive to a specific discovery request was available, and when the prosecution has access – as they frequently do – how can it not be a violation of Article 46, UCMJ, for them to fail to turn over the information.

On 9 May 2007, trial counsel responded to the defense discovery request, stating in relevant part “[t]he Government is not aware of the existence of any such documentation regarding the records of the victims, Mrs. [JLC] and Mrs. [SCR].” In fact, trial counsel had not asked Mrs. SCR whether she had attended mental health counseling before responding to the defense discovery request.

CAAF and Abu Ghraib

February 4, 2010 | The Law Office of Philip D. Cave

CAAF has decided two cases related to Abu Ghraib: United States v. Harman, and United States v. Smith.

The issue in Harman was factual sufficiency and the conviction and sentence was affirmed.

Appellant admitted to investigators that she took a new detainee, who had been placed on a box with a hood over his head, affixed his fingers with wires, and told him he would be electrocuted if he fell off the box. Appellant then photographed the victim who stood on the box for approximately an hour. Appellant admitted it was her idea to attach these wires, though military intelligence officials had not asked her or her colleagues to do so. Appellant thought this was permissible because “[w]e were not hurting him. It was not anything that bad.”

Major Hasan update

January 15, 2010 | The Law Office of Philip D. Cave

Defense Secretary Robert M. Gates said today that he has forwarded recommendations to the Army for disciplinary action against supervisors of the accused Ft. Hood shooter.

The LA Times reports.

The report recommends clarifying for unit commanders their responsibility in identifying people who could pose a threat. Unit commanders, according to the report, must become attuned to indicators of behavioral problems or the potential for violence or radicalization.

Behenna update

January 3, 2010 | The Law Office of Philip D. Cave

CAAFLog has this case among the Top-10 for 2009.

Vicki Behenna has 10 minutes to plead her son’s case.

Where does she begin?

Flipper

December 31, 2009 | The Law Office of Philip D. Cave

The Fall of a Black Army Officer: Racism & the Myth of Henry O. Flipper, by Charles M. Robinson III, Norman, Ok: University of Oklahoma Press, 2008.

In his 1994 book The Court-Martial of Lieutenant Henry Flipper, Robinson, an historian of the frontier army, held to the view that Flipper?s 1881 conviction for embezzlement was rooted in racism.

Reviewing materials not available at the time he did the earlier book, in the present work Robinson concludes that, while not denying the existence of racism in the army, Flipper had indeed been careless with funds, albeit probably intentionally. Such financial misconduct apparently was not uncommon in the Old Army, as very young officers were often given responsibility for large sums with little or not training. A number of other officers in the period were also found short in their accounts. The penalties handed out to most of these officers, however, were not usually immediate expulsion from the service, which is where the Flipper case differs from theirs.

Major Hasan’s mental health defense — or something else

November 10, 2009 | The Law Office of Philip D. Cave

Will Major Hasan successfully use PTSD as a defense, or will it at least become a mitigating factor to be considered. If the trial is at Fort Hood, as seems likely at the moment, many of the Members (jury) panel will already have quite a bit of extra-judicial information.

Here are some links relating to secondary traumatization.

Zimmering, Munroe, & Gulliver, Secondary Traumatization in Mental Health Care Providers, 20 Psych. Times (Apr. 2003).