Appeals Category Archives — Court-Martial Trial Practice Blog Published by International Military Lawyer

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.

Defining meaning from words in a statute

September 24, 2023 | The Law Office of Philip D. Cave

Generally

When deciding what a word or term in a statute means, the rule of statutory interpretation is to give the word or term its plain and ordinary meaning. This is known as the plain meaning rule. If the word or term is clear and unambiguous, then the court will not look beyond the text of the statute to determine its meaning. The principal rule is well known to military defense counsel as they prepare a case for trial.

If a word or term is ambiguous, then the court may use other tools of statutory interpretation to determine its meaning. These tools include:

Speed up post trial review

September 1, 2023 | The Law Office of Philip D. Cave

Have you been convicted at court-martial? Want a speedy review of your case for appeal?

There are two major roadblocks: (1) having the record of trial delivered to and docketed with the Air Force, Army, Coast Guard, or Navy-Marine Corps Court of Criminal Appeals and (2) the workload of the military appellate defense counsel. The roadblocks are, in my opinion, the Service Judge Advocate General’s fault in not assigning enough people to complete post-trial actions or work on the appeal promptly.

Immediately after the trial, there has to be a formal Entry of Judgment–which usually takes 30-45 days to complete. Then, the Government must prepare a full trial record forwarded to the appellate court and the military appellate defense lawyers who will work on the appeal. Here is where most of the delay can happen. These records take time to prepare–and too often, the Government takes an unreasonably long to do this. Records can take six to two years to get to the appellate court before the appellate defense counsel can get to work, and a decision comes from the court. We have a case right now where it took 412 days. The Navy-Marine Corps just decided on a case that took about ten years.

Challenge MRE 311!

July 18, 2023 | The Law Office of Philip D. Cave

YOUR MILITARY DEFENSE COUNSEL SHOULD CHALLENGE THE APPLICATION OF THE MILITARY RULE OF EVIDENCE 311.

THE RULE VIOLATES THE U.S. CONSTITUTION.

WE ARE CHALLENGING THAT AT THE U. S. SUPREME COURT NOW.

Unanimous verdicts

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

Military lawyers know that since the Supreme Court decided Ramos v. Louisiana, the U. S. military is the only federal jurisdiction that does not require unanimous findings of guilt.

Currently, a military jury (called a Panel of Members) must have eight members in a general court-martial (12 if it’s a death penalty case) and four in a special court-martial. Article 29. Three-fourths of the members must vote for a finding of guilty. Article 52.

That is the current law in the military, but it is being challenged. The Court of Appeals for the Armed Forces has several cases on the issue of unanimous verdicts, which will be decided this term. If the court decides in favor of unanimous verdicts, then the Government will likely appeal to the U. S. Supreme Court (or vice-versa).

Another bad day at CAAF for the Fourth Amendment.

May 7, 2023 | The Law Office of Philip D. Cave

Two recent decisions of CAAF condone unlawful or bad practices when OSI, CID, NCIS, and CGIS search cellphones; United States v. Shields and United States v. Lattin. As a result, the MCIOs are unlikely to change their unlawful or bad practices. More than sloppy police work gets two passes because the military appellate courts think suppression of evidence won’t change that behavior–and the accused is a bad person. Military defense lawyers need to be fully aware of the issues whenever evidence from an accused’s cellphone comes up in evidence.

The Fourth Amendment protects against unreasonable searches of our property, including cell phones. In Riley, the Supreme Court properly required a search warrant for (CID, OSI, CGIS, and NCIS) intrusions into seized cellphones. The court has acknowledged that people have a privacy right against Government intrusion without a warrant based on probable cause. As we know, there is an awful lot of personal data that is kept on the cellphone, and that can be retrieved with forensic tools.

In Lattin, the issue was a fishing expedition through the Appellant’s cellphone. The trial transcript shows that the OSI agent believed she had the right to search everything in the cellphone because it had been seized after the execution of a commander’s search and seizure authorization. With that general warrant concept in her mind she scrolled through a lot of information on the Appellant’s phone that wasn’t related to the reason for the search in the beginning. The OSI agent did not believe there were any limits based on her training and experience. Both the AFCCA and CAAF have ruled that the search was unlawful but that it was excused because there would be no future deterrent effect to OSI committing further unlawful searches. The court partly relied on Mil. R. Evid. 311, which wrongly summarizes the law post-Herring that was reinforced in Davis.

Military ineffective assistance of counsel

February 21, 2023 | The Law Office of Philip D. Cave

In the context of a court-martial, ineffective assistance of counsel refers to a claim by a military defendant that their defense counsel provided them with legal representation that fell below an objective standard of reasonableness and that this deficient representation prejudiced the outcome of their case.

Under the Uniform Code of Military Justice (UCMJ), military defendants have the right to be represented by counsel at trial. If a defendant believes that their defense counsel provided them with ineffective assistance, they can raise this claim on appeal. The standard for evaluating claims of ineffective assistance of counsel in a court-martial is the two-part test established in Strickland v. Washington, a case decided by the U.S. Supreme Court in 1984.

Under the Strickland test, the defendant must show that their counsel’s performance was deficient and that this deficient performance prejudiced the outcome of the trial. Deficient performance means that the attorney’s representation fell below an objective standard of reasonableness, and prejudice means that there is a reasonable probability that, but for the deficient performance, the outcome of the trial would have been different.

Military Coram Nobis

February 17, 2023 | The Law Office of Philip D. Cave

A “coram nobis” appeal is a legal procedure used to challenge a criminal conviction or sentence after all other legal avenues for relief have been exhausted. It is a form of post-conviction relief available in some U.S. states and federal and military courts.

Coram nobis appeals are generally limited to situations where there is newly discovered evidence that was not available at the time of trial or sentencing or where there was a fundamental error in the original trial that has since been revealed. The appeal aims to correct errors that would have changed the outcome of the case if they had been known at the time of the original trial.

The jurisdiction for coram nobis appeals varies depending on the jurisdiction where the original conviction occurred. In some states, the appeals are filed in the same court that originally heard the case, while in other states, they are filed in a higher court. In federal court, coram nobis appeals are filed in the same court that originally heard the case, and the jurisdiction is determined by the location of that court. In courts-martial, a coram nobis petition is usually filed with the court of criminal appeals.

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.

Grazioplene redux

July 9, 2020 | The Law Office of Philip D. Cave

CNN reports,

See also, https://connectingvets.radio.com/articles/retired-army-general-james-grazioplene-stand-trial-rape-charges-army-dismissed

https://taskandpurpose.com/news/retired-army-general-rape-charges