court-martial Tag Archives — Page 2 of 60 — Court-Martial Trial Practice Blog

Discovery

February 9, 2023 | The Law Office of Philip D. Cave

Here’s how we start our “discovery” requests–as “Disclosure Requests.”

The defense requests disclosure of the following items in advance of any UCMJ art. 32, preliminary hearing. The request is a continuing one in accordance with UCMJ arts. 32((a)(2)(D) and46; Rules 701, 703, 405(a), (e), (1), (f)(7), (h)(3)(A), Rules for Courts-Martial, Manual for Courts-Martial, United States (2019),; Mil. R. Evid. 304(d)(1), 404(b), 705; United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999); United States v. Briggs, 48 M.J. 143, 144 (C.A.A.F. 1999); and Brady v. Maryland, 373 U.S. 83 (1963). See also, Uniform Rules of Practice before Air Force Courts-Martial, dated 1 October 2020; Rules 3.2 & 3.3; AFI 51‑201; AFGM2020-02, Administration of Military Justice, dated 5 October 2020, paragraph 5.12; AFI 51-110, Professional Responsibility Program, dated 11 December 2018, Attachment 2 (Air Force Rules of Professional Conduct); Rules 3.3, 3.4, 3.8 & 4.2 and Attachment 7 (Air Force Standards for Criminal Justice), Chapter 5. These items are relevant under UCMJ art. 32(a)(2)(D) and which calls upon the preliminary hearing officer to make a referral recommendation.

NOTE: In the event charges are referred to trial, this disclosure request immediately becomes the FIRST defense discovery request.

Double Jeopardy

February 6, 2023 | The Law Office of Philip D. Cave

A person being tried at court-martial may have their case dismissed before the members (jury) reach any findings. One way that can happen is when the military judge declares a mistrial. Your military defense lawyer should know what to do if the same charges are re-referred to a court-martial–the prosecution taking a second attempt to convict you.

In a recent case, we had that happen. Unlike uniformed defense counsel, we immediately filed a Writ of Mandamus and Prohibition to prevent the second trial. In Murillo, the Navy-Marine Corps Court of Criminal Appeals has agreed that (1) the court has jurisdiction to hear a Writ petition on this issue and (2) the military judge erred in declaring a mistrial. Thus, the court has dismissed the charges. (As of 5 Feb., we do have to wait to see if the prosecution will appeal that decision.)

The Double Jeopardy Clause‘s whole concept is to protect the accused from a second or subsequent trial on the same charges. The trial itself is what is prohibited. The case is United States v. Murillo, No. 202200132 (N-M Ct. Crim. App. Feb. 3, 2023) (unpub.). The Double Jeopardy Clause is in the Fifth Amendment to the US Constitution, which says, “No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . ” The bar against double jeopardy comes from English common law, possibly from Roman law. See F. Ward, Double Jeopardy Clause of the Fifth Amendment. 26 Am. Crim. L. Rev. 1477 (1989). Ward points out that a double jeopardy challenge can be waived by a pretrial agreement because of a Supreme Court decision in United States v. Broce. The author suggests that the military judge should include in their inquiry about whether a waiver is knowing and intentional and whether the defendant understands that waiving the right to trial as part of a plea agreement is also waiving the double jeopardy claim.

Sexual harassment

April 23, 2022 | The Law Office of Philip D. Cave

Well, calls for change to the new changes for the prosecution of sex crimes have already begun. During the Conference over the NDAA FY 22, sexual harassment was removed from the list of covered offenses under the jurisdiction of a special trial counsel (STC). But, the President was tasked to enumerate an offense of sexual harassment under UCMJ art. 134. The President did so (along with other changes) in Executive Order 14062, of January 26, 2022, Annex at 21.

(1) That the accused knowingly made sexual advances, demands or requests for sexual favors, or knowingly engaged in other conduct of a sexual nature;
(2) That such conduct was unwelcome;

b‘ware

July 20, 2012 | The Law Office of Philip D. Cave

The Inspector Rutledge detective stories are a favorite of mine. To quote an Amazon review:

[T]he books are set in the period just after the First World War, and Inspector Rutledge is a veteran of said conflict. Even more unique, he’s haunted by the ghost of one of his subordinates, a corporal whom Rutledge had to shoot and kill after the man panicked and tried to run away during a battle. The dead man doesn’t blame Rutledge for the incident, not exactly anyway, and serves as a sort of alter ego for Rutledge. You’re never entirely certain whether Hamish MacLeod’s ghost is really there, or merely a figment of Rutledge’s imagination, given that he was horribly scarred psychologically by the war.

Hamish talks to the inspector and is often quicker to spot a problem, an inconsistency, or a wrong – “b’ware” he’ll say, or sometimes just “’ware.”

A greater “privilege” reminder

July 1, 2012 | The Law Office of Philip D. Cave

From my very first opinion on this Court, I have consistently concluded that Mil.R.Evid. 410 must be applied broadly to be consistent with its purpose. United States v. Barunas, 23 M.J. 71, 75-76 (CMA 1986). See also Fed.R.Evid. 410. Speaking for the Court in Barunas, I said:

The general purpose of Mil.R.Evid. 410 and its federal civilian counterpart, Fed.R.Evid. 410, is to encourage the flow of information during the plea-bargaining process and the resolution of criminal charges without "full-scale" trials. See United States v. Grant, 622 F.2d [308,] at 313 [(8th Cir. Ark. 1980)]; see generally Santobello v. New York, 404 U.S. 257, 260-61, 92 S. Ct. 495, 497-98, 30 L. Ed. 2d 427 (1971). An excessively formalistic or technical approach to this rule may undermine these policy concerns in the long run. United States v. Herman, 544 F.2d [791,] at 797 [(5th Cir. Fla. 1977)].See generally Wright and Graham, Federal Practice and Procedure: Evidence § 5345 (1980). A failure to recognize and enforce the military expansion of this rule may have the same effect. 23 M.J. at 76.

United States v. Anderson, 55 M.J. 182 (C.A.A.F. 2001)(Sullivan, J., concurring).

I think it fair to consider Mil. R. Evid. 410 a form of privilege although not found in the 500 series of rules. Fourthamendment.com notes an interesting case about application of Fed. R. Evid. 410. In reading the case it appears the federal courts may take a more restrictive view of the rule compared to application of Mil. R. Evid. 410.

Post-trial duties

January 9, 2011 | The Law Office of Philip D. Cave

NMCCA has decided United States v. Owens.

The appellant asserts that the attorney-client relationship with his detailed trial defense counsel was terminated without good cause, leaving the appellant legally and factually without post-trial representation. The basis for the appellant’s claim is that substitute counsel failed to establish an attorney-client relationship with the appellant prior to receipt of the staff judge advocate’s recommendation (SJAR).

The court makes clear in footnote 3, that:

Motivation

January 8, 2011 | The Law Office of Philip D. Cave

To stay out of trouble.

To work hard for you clients.

Labor Department employment statistics released Friday show that young veterans continue to have serious and growing problems finding work in a tight job market, while older veterans are doing better than the general population.

I object!

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

Waive it or raise it at work – and at a court-martial under the UCMJ.

Judge Ed Carnes for the Eleventh Circuit in United States v. Rodriguez, No. 08-16696, Dec. 22, 2010:

This case poses the question of whether there is a vindictive judge or cowardly counsel exception to the contemporaneous objection rule. Unless there is such an exception, the only issue that the appellant is pressing on appeal is barred for failure to object because she cannot meet the requirements of the plain error rule. Disagreeing with the Second Circuit, we hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it.

Up periscope

November 29, 2010 | The Law Office of Philip D. Cave

Navy Times reports:

A cruiser skipper who was fired for cruelty and mistreatment of her crew will go before a Navy board of inquiry Tuesday that will recommend whether she can continue her Navy service.

A Behanna update by Army Times:

Jackie Robinson–not guilty

November 28, 2010 | The Law Office of Philip D. Cave

Takepart notes:

Of course, Robinson didn’t begin his fight for equal rights overnight. While enlisted, Robinson was court-martialed for refusing to sit at the back of the bus — eleven years before Rosa Parks. Faced with multiple offenses, including public drunkenness (even though Robinson did not drink), the UCLA standout was acquitted of all charges by an all-white jury.

American Heritage Magazine has this introduction to the charges (and a fairly decent history of the case):