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.

“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.

Devastating report confirming what many of us have been saying

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

A 2024 GAO Report to the Committee on the Armed Services, House of Representatives tells you all you need to know to justify hiring an experienced military defense law firm to represent you at court-martial.

Senior officials from each service also raised concerns about the newly established Office of Special Trial Counsel (OSTC) and the likelihood that it will exacerbate issues of inexperience within certain litigation positions. Generally, judge advocates are expected to become eligible for assignment to the OSTC after 2 to 4 years of litigation experience. OSTC experience standards, coupled with the limited number of litigators who meet these requirements, will likely force the services to rely on inexperienced litigators to serve as defense counsel or other positions that lack similar requirements. Further, these officials stated that the focus on OSTC experience standards could lead to a potentially significant imbalance in the experience levels of defense and prosecution assigned to litigate the same case.

Those of us who appear in cases as civilian military defense counsel have been saying this for years.

What can we do for you

April 17, 2024 | The Law Office of Philip D. Cave

Military service is a noble calling, but it can also lead to complex legal situations. When facing accusations or disciplinary actions, having experienced legal representation is crucial. Cave & Freeburg, LLP stands firmly behind service members across all branches (Army, Navy, Marine Corps, Air Force, and Coast Guard) with a proven track record of success in a wide range of military legal issues. Here’s how Cave & Freeburg, LLP can be your military defense lawyer and advocate:

1. Court-Martial Defense:

A court-martial is a serious matter that can result in a dishonorable discharge, imprisonment, and a ruined career. Cave & Freeburg, LLP brings decades of combined experience to your defense. Their attorneys have a deep understanding of the Uniform Code of Military Justice (UCMJ) and extensive experience navigating the complexities of court-martial trials and appeals. They will:

Sea Service arrest reporting

March 7, 2024 | The Law Office of Philip D. Cave

U.S. Navy Regulation 1137 focuses on the obligation of service members to report offenses. It states: “Persons in the naval service shall report as soon as possible to superior authority all offenses under the Uniform Code of Military Justice (UCMJ) which come under their observation, except when such persons are themselves already criminally involved in such offenses at the time such offenses first come under their observation.”

This regulation applies to Marines as well, as per Headquarters Marine Corps guidance. However, there’s an additional wrinkle related to civilian arrests and convictions.

Reporting Civilian Arrests and Convictions

Lost evidence

February 23, 2024 | The Law Office of Philip D. Cave

Evidence can get lost or destroyed before trial and thus is unavailable to the defense. It depends on what that evidence is and what remedy there is for the loss. A primary question is what is the importance of the lost evidence for the defense, does it mean the accused can’t get a fair trial, and so what remedy must the judge apply? It also makes a difference when the evidence was lost or destroyed and who lost or destroyed the evidence.

The issue is very important because by the time an accused gets the opportunity to do anything about it, much time has passed. Investigations take months before anyone in the defense counsel team knows that and more months before the issue can be presented to a judge. This is why at Cave & Freeburg we have started sending evidence preservation requests as soon as we get the case.

The Court of Appeals for the Armed Forces has issued significant cases on this issue which should be a starting point for a military defense counsel in evaluating the meaning and consequences of lost or destroyed evidence: Simmermacher and Stellato.

Frankenstein military justice

January 13, 2024 | The Law Office of Philip D. Cave

The UCMJ: A Frankensteined Military Justice

Over the past decade, the Uniform Code of Military Justice (UCMJ) has undergone significant change. Driven by headline-grabbing scandals and shifting political winds, Congress has stitched together a Frankensteinian monster of legislation, leaving a system with contradictions, unintended consequences, and a looming shadow over due process.

A History of Frankensteinian Tinkering: