Court-Martial Trial Practice Blog

Air Force appeals court dismisses charges because of lack of evidence

May 16, 2024 | The Law Office of Philip D. Cave

Any experienced military appellate lawyer will tell you that the chances of winning on appeal can be low, depending on the issues raised in the appellate briefs. The hardest issue to have a court of criminal appeals dismiss the charges because they did not find there was enough evidence to sustain and conviction beyond reasonable doubt.

That is what happened for us and our appellate client in a just recently decision by the Air Force Court of Criminal Appeals.

The Appellant was charged with possession and distribution of CP (contraband images). The prosecution’s first attempt to get a conviction failed when the military judge abated the trial. The military judge did that because there was a lot of critical evidence that had been lost or destroyed by the police. The prosecution appealed that decision and the Air Force Court granted the prosecution’s appeal. So, the trial recommenced. After a contested trial the client was convicted.

Statute of Limitations

November 26, 2024 | The Law Office of Philip D. Cave

Statutes of limitations are legal deadlines for filing criminal charges. They are essential because:

Statutes of limitations are crucial in preserving evidence and ensuring a fair trial. As time passes, evidence can deteriorate, witnesses can forget details or become unavailable, and memories can become less reliable. This can significantly hinder the fairness of a trial, particularly for the defendant. The statutes of limitations help maintain this balance.
Statutes of limitations shield the defendant’s rights, providing a sense of security. It’s generally unjust to leave someone under the perpetual threat of prosecution. These statutes protect individuals from facing charges for actions long in the past when mounting a defense might be extremely challenging.

Reasonable doubt

November 26, 2024 | The Law Office of Philip D. Cave

Reasonable doubt is the fundamental pillar protecting the rights of accused service members in a court martial. It is a legal standard that ensures a fair and just process and safeguards against the potential for wrongful convictions. The prosecutor must prove a case beyond a reasonable doubt, a crucial safeguard against false convictions. The BRD standard serves as a second cornerstone to a fair trial. BRD works alongside another cornerstone of the legal system- the presumption of innocence. The burden of proving guilt rests solely on the prosecution. The defendant does not have to prove their innocence. This principle helps to prevent wrongful convictions by ensuring that individuals are not punished unless the state can provide compelling evidence of their guilt. The high burden of proof helps to mitigate the potential impact of biases or errors in the justice system. It requires the prosecution to present objective evidence that can withstand scrutiny, reducing the risk of convictions based on prejudice, faulty eyewitness testimony, or flawed forensic evidence.

Military judges in the various military services play a crucial role in defining reasonable doubt to their panels (juries). For instance, the Army and the Coast Guard judges instruct the panel that a “reasonable doubt is a fair and reasonable hypothesis other than that of guilt.” Soldiers and Coasties are guided to acquit if there is another rational, innocent explanation for the facts. On the other hand, the Air Force, Navy, and Marine Corps use different language, telling the panel that they must be “firmly convinced” or similar language to convict.

The highest standard of legal proof in criminal trials is beyond Reasonable Doubt. This means that the prosecution must present evidence strong enough to convince a reasonable person that there is no other logical explanation for the facts except that the defendant committed the crime. This demanding standard makes it less likely that someone will be convicted based on weak or insufficient evidence. The evidence must firmly convince the jury of the defendant’s guilt. If there is any reasonable uncertainty, the jury is instructed to acquit. This standard recognizes the gravity of depriving someone of their freedom, or worse, their life, and requires that the evidence be overwhelmingly convincing.

Afghanistan–The Generals

November 25, 2024 | The Law Office of Philip D. Cave

According to multiple news reports, the president-elect’s transition team is “compiling a list of senior current and former U.S. military officers who were directly involved in the withdrawal from Afghanistan and exploring whether they could be court-martialed for their involvement….”

https://www.nbcnews.com/politics/politics-news/trump-transition-team-compiling-list-current-

former-us-military-office-rcna180489 .

Sex and consent-U.S. v. Mendoza

November 25, 2024 | The Law Office of Philip D. Cave

How the prosecution charges a sexual assault is important because consent has different legal meanings. United States v. Mendoza is an important new case that highlights the issue.

As military appellate defense lawyers and trial defense counsel we have been arguing the Mendoza issue for some time (as have others). So we were pleased to see that CAAF agrees with us in Mendoza.

Consent is a critical element in sexual assault cases under the UCMJ. The text distinguishes between two types of sexual assault:

Parental Discipline

November 22, 2024 | The Law Office of Philip D. Cave

The Army Court of Criminal Appeals has issued an important decision in

United States v. Brassfield, M.J. _ (Army Ct. Crim. App. 2024) (en banc)

The court reaffirms that a servicemember accused of assault against their child may raise the defense of “it was parental discipline.” The definition of what is or isn’t criminal corporal punishment has changed over the years. The Court of Military Appeals (CMA) (predecessor to the Court of Appeals for the Armed Forces (CAAF)), said so in United States v. Brown, 26 M.J. 148 (1988). The CMA adopted a two-part test from the Model Penal Code.

“Involuntary” Discharge Upgrades

October 15, 2024 | The Law Office of Philip D. Cave

There is good news for about 800 prior servicemembers who where discharged because of their sexuality.

At leadership’s direction, the Services have completed 800 of 863 discharges without the person having to apply for one.

“[O]f the nearly 13,500 individuals who were administratively separated under Don’t Ask, Don’t Tell policy, and served long enough to receive a merit-based characterization of service, 96% now have an honorable discharge.”

Right to Remain Silent

September 12, 2024 | The Law Office of Philip D. Cave

As a trial and appellate lawyer, I pay attention to word and phrase choices because of the potential effect on the reader or listener. You may be familiar with the saying, ‘it’s not what you say (write) but what the other person hears (reads).’ The point is that the listener may interpret what you have said differently and perhaps adversely. “The same phrase said in different ways can mean very different things. That is partly because perception is reality. So even if you say something that feels sincere to you, the person could hear it completely differently, and that becomes their reality.

James J. Duane, reminds us of the need to pay attention to word choice in his article, “The Right to Remain Silent: A New Answer to an Old Question.”

There is no official language that a witness is required to employ when invoking the privilege against self-incrimination. As one federal circuit court recently observed, “A witness’s answer could range from ‘I refuse to answer on the ground that my answer may tend to incriminate me’ to the more mundane ‘On the advice of counsel, I decline to answer.’” Evans v. City of Chicago, 513 F.3d 735, 740 n.4 (7th Cir. 2008).

Extremism in the Marine Corps

September 4, 2024 | The Law Office of Philip D. Cave

Military.com reports new efforts within the Marine Corps to track extremism in the ranks.

Drew F. Lawrence, Marine Corps Extremist, Gang Activity Must Be Immediately Reported Up the Chain, Service Says. Military.com, 4 September 2024.

The Marine Corps is streamlining how its commands report protests, extremism and gang activity among Marines, according to an administrative message released late last month, issues that each of the military services have long struggled with.

Drug testing in the recruiting service

May 20, 2024 | The Law Office of Philip D. Cave

It is reported by Stars & Stripes that the NDAA for 2025 will include a provision barring testing for marijuana of new applicants for military service.

The NDAA proposal’s idea is that the marijuana testing requirement discourages potential recruits from enlisting. This concern is particularly significant because the Services are currently facing recruiting challenges. By removing this barrier, the provision aims to attract a larger pool of applicants, potentially addressing the recruiting problems.

Preservice drug use can be a bar to enlistment. It depends on what drug, how often, and how close in time to the application process. It was not unusual to hear of recruiters telling a poolee to say they only experimented with the drug when applying. With that statement, a waiver could be possible. The benefit to the recruiter was getting an enlistment and meeting her quarterly quota.

Court-Martial Trial Practice

United States v. Brassfield, __ M.J. ___ (Army Ct. Crim. App. 2024) (en banc)

United States v. Brassfield, M.J. _ (Army Ct. Crim. App. 2024) (en banc)