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.

Collatoral Review, including habeas

March 30, 2025 | The Law Office of Philip D. Cave

Summary and Analysis of the Opinion: Deference Owed to the Military Justice System and the Limits of Collateral Review by Federal District Courts

The review is based on Csady v. Ashworth, but it is equally applicable when federal courts examine habeas corpus petitions from military prisoners under 28 U.S.C. 2241.

I. Overview and Holding

Other acts-predisposition-Rule 404(b)

March 30, 2025 | The Law Office of Philip D. Cave

You are on trial for an offense and the prosecution wants to introduce evidence against you under Military Rule of Evidence 404(b). How does that work and what can your military defense lawyer do to exclude such evidence.

The first step is to object to the evidence before trial by filing a motion in-limine. Your military defense lawyer will then argue why the evidence is not admissible and challenge the prosecution’s arguments for admission.

Should something come up during trial, your military defense counsel must object to preserve the issue in the event of an appeal. Failure to object may result in the appellate courts deciding you have “waived” the issue and will refuse to consider it. Or, sometimes the appellate court will apply a less stringent “plain error” review.

Jury biases at court-martial–voir dire

March 25, 2025 | The Law Office of Philip D. Cave

In United States v. Urieta,

The appellant, a specialist in the U.S. Army, was charged with multiple sexual assault offenses and a false official statement. During voir dire at his court-martial, he challenged the selection of Sergeant First Class (SFC) Bravo as a panel member, arguing actual and implied bias based on SFC Bravo’s statements regarding soldiers who retain civilian defense counsel. The military judge denied the challenges, and SFC Bravo participated in the panel that convicted the appellant.

On appeal, the United States Army Court of Criminal Appeals (CCA) affirmed the conviction. However, the Court of Appeals for the Armed Forces (CAAF) reviewed the case and determined that while the military judge did not abuse discretion regarding actual bias, SFC Bravo’s responses during voir dire created a close case of implied bias. Under the liberal grant mandate, which requires excusing panel members in close cases to maintain public confidence in the fairness of military justice, CAAF held that the military judge erred. Consequently, the CAAF reversed the CCA’s judgment.

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

Stalking Under the Uniform Code of Military Justice (UCM

March 13, 2025 | The Law Office of Philip D. Cave

I. Introduction

Stalking is a serious offense under military law, reflecting the military’s commitment to protecting service members from harassment, intimidation, and threats. It is criminalized under Article 130 of the Uniform Code of Military Justice (UCMJ), which was introduced as part of the 2013 amendments under the National Defense Authorization Act (NDAA) for Fiscal Year 2013. The offense aligns with the broader efforts to address domestic violence, harassment, and misconduct affecting unit cohesion and readiness.

As court-martial defense lawyers, Cave & Freeburg, LLP, have experience and success in defending persons accused of offenses under the Uniform Code of Military Justice. Call or email to discuss your investigation, charges, court-martial, or appeal.

404(b) evidence of common scheme / plan

March 12, 2025 | The Law Office of Philip D. Cave

In United States v. Gree

The appellant contends that the military judge erred in admitting evidence of uncharged acts occurring seventeen months after the charged offenses to establish a common plan or scheme. He argues that this evidence was improperly admitted under Military Rule of Evidence (M.R.E.) 404(b) and that the judge did not conduct a proper M.R.E. 403 balancing test. Additionally, he asserts that the Air Force Court of Criminal Appeals (AFCCA) improperly substituted its reasoning by finding the evidence probative of wrongfulness and intent.

A. M.R.E. 404(b) Evidence

Don’t ask, don’t tell

March 12, 2025 | The Law Office of Philip D. Cave

The “Don’t Ask, Don’t Tell” (DADT) policy, enacted in 1993 under President Bill Clinton, represented a compromise allowing gay, lesbian, and bisexual individuals to serve in the U.S. military provided they did not disclose their sexual orientation. This policy prohibited military personnel from discriminating against or harassing closeted service members but mandated discharge for those who openly acknowledged their homosexuality. While intended as a progressive step, DADT effectively institutionalized secrecy, leading to the discharge of thousands solely based on their sexual orientation.

History

The repeal of DADT in 2011 allowed LGBTQ+ individuals to serve openly. However, many veterans discharged under DADT or prior policies continued to face challenges due to “other than honorable” discharge statuses, which impeded access to military benefits and affected civilian employment opportunities. Their discharge paperwork often explicitly cited their sexual orientation as the reason for separation, perpetuating stigma and discrimination post-service.

Military protective order violations

March 11, 2025 | The Law Office of Philip D. Cave

If you are accused of domestic violence, assault, or a sexual offense, then your commander will issue a Military Protective Order (MPO) prohibiting you from contacting the alleged victim.

As military defense counsel, we at Cave & Freeburg, LLP, have experience with MPOs and problems with them.

Also, being given an MPO may be the first sign that you are under investigation and what it is about. When that happens, as military defense lawyers we may be able to help with the MPO, and most importantly, with how the investigation and case proceeds.

Speedy court-martial appeal

March 11, 2025 | The Law Office of Philip D. Cave

A court-martial sentenced servicemember has the right to a speedy appeal. The right is based on the Constitution and on various interpretations of military appellate courts like the Army Court of Criminal Appeals.

The first and most command barrier to you or your loved one getting a speedy appeal is the failure of the local command to promptly and properly prepare the record of trial and send it t0 the proper Court of Criminal Appeals.

At Cave & Freeburg, LLP, we have experience with this problem. As military defense counsel we have developed a process to help speed up getting the record of trial completed. The process has worked in some cases, but that’s not guarantee for every case.

Transgender-plus

March 7, 2025 | The Law Office of Philip D. Cave

As military defense lawyers, we at Cave & Freeburg, LLP, along with Brenner Fissell, are representing transgender-plus servicemembers navigating the Trump executive orders.

A History of Transgender and Gender Dysphoria Persons in the U.S. Military

The history of transgender individuals and those experiencing gender dysphoria in the U.S. military has varied in periods of exclusion, evolving policies, legal challenges, and eventual inclusion efforts. The regulatory framework surrounding transgender military service has shifted based on changing presidential administrations, military directives, and judicial rulings.