navy 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.

Up periscope

October 17, 2010 | The Law Office of Philip D. Cave

I posted before about the CO of USS OHIO being detached for cause and the number of Navy CO’s DFC’d this year. Now Navy Times has obtained a copy of documents related this case which appears to include a copy of the command investigation.

The arrival of a birthday card in the ship’s mail addressed to Capt. Ronald Murray Gero, who was turning 56, marked the beginning of the end of his command of the guided-missile submarine Ohio.

It appears various members of the crew started collecting evidence, and then:

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.

Courts-martial numbers down

June 12, 2010 | The Law Office of Philip D. Cave

CAAFLog blogged a while back about the declining numbers in Courts-Martials held. Navy Times reports this as a possible explanation for lower Navy numbers:

The overall number of sailors facing courts-martial has dropped dramatically during the past several years, Navy records show.

General courts-martial for the most serious offenses have fallen by nearly half, from 172 in 2005 to 94 last year. Court cases for lesser crimes have fallen by even more, according to data provided by the Navy’s judge advocate general.

CAAF decides ‘self-report’ case

May 6, 2010 | The Law Office of Philip D. Cave

In United States v. Serianne __ M.J. ___ (C.A.A.F. 2010), CAAF affirmed NMCCA’s dismissal of a charge that Chief Serianne failed to inform his command of a civilian conviction. Here is a link to the en banc opinion on an Article 62(b) interlocutory appeal by the government in Serianne, at NMCCA.

On its face the decision has narrow application to a particular Navy instruction. However, the case may impact any revision of the Navy instruction and also the directive that DoD initiated in 2008 on the subject of E-6 and above reporting their civilian convictions.

I have posted before about an April 2008 policy memorandum issues by DoD. The memorandum will require self-reporting of certain civilian convictions.

Up periscope

April 7, 2010 | The Law Office of Philip D. Cave

Gazette.com reports that:

An Army prosecutor Tuesday opened the trial of an Iraq war veteran by accusing him of the “ultimate betrayal” — raping a comrade’s wife.

Spc. Philip C. Vermeiren, 28, is accused of assaulting the woman early Oct. 31 during an alcohol-fueled party at the Fort Carson apartment she shared with her husband.

Up periscope

March 11, 2010 | The Law Office of Philip D. Cave

Army Times reports.The Army says a soldier who returned to a hero’s welcome in Wisconsin misrepresented his rank, badges and the origin of his injuries.

FayObserver reports:

The 11th juror was provisionally seated in the court-martial of Army Master Sgt. Timothy B. Hennis on Wednesday.