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

Affirmative defenses–Macdonald trailers?

June 21, 2019 | The Law Office of Philip D. Cave

No. 19-0051/AR. U.S. v. Korey B. Kangich. CCA 20170170. On consideration of the granted issue, 78 M.J. 304 (C.A.A.F. 2019), the judgment of the United States Army Court of Criminal Appeals, United States v. Kangich, No. 20170170 (A. Ct. Crim. App. Sep 27, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that because the affirmative defense of mistake of fact as to consent applies only if the mistake is reasonable as well as honestly held, the military judge did not err. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

This case does not appear on ACCA’s website. LEXIS has the case number as 20170170, and CAAF granted the following issue.

WHETHER THE MILITARY JUDGE ERRED IN APPLYING A NEGLIGENT MENS REA TO MAKE OTHERWISE LAWFUL CONDUCT CRIMINAL.

Private internet speech is unlawful if an officer in the AF

October 15, 2018 | The Law Office of Philip D. Cave

11 October 2018. Orders Granting Petition for Review

No. 18-0339/AF. U.S. v. Scott A. Meakin. CCA 38968. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT’S CONVICTION FOR ENGAGING IN ANONYMOUS, PRIVATE, AND CONSENSUAL COMMUNICATIONS WITH AN UNKNOWN PARTNER(S) IN THE PRIVACY OF HIS HOME WAS LEGALLY SUFFICIENT.

Recording while having sex

November 6, 2015 | The Law Office of Philip D. Cave

Because of the current politics surrounding sexual assaults in the military, some are wondering what they can do in advance to avoid a later false claim of sexual assault. This has lead to a suggestion that the interactions should be video recorded, the idea being that the recording will later be evidence to defend against a false report.

Well, that doesn’t take care of the issue about the potential crime involved. If the recording is done with knowledge and consent, that probably is defensible. But what if it isn’t. Many states now have statutes prohibiting unknowing or nonconsensual recordings. As does the federal government in 18 U.S.C. 2251(a). Now what.

See United States v. Palomino-Coronado, a decision of the Fourth.

Erotic asphyxiation-the choking game

October 17, 2014 | The Law Office of Philip D. Cave

Some years ago I represented a Soldier accused of multiple assaults and rapes of his wife, and of his girlfriends. The rapes allegedly included him choking the complaining witness during the rapes.

He told me – and later the members at his court-martial – that he and his wife consensually engaged in choking during sex as part of rough sex because she liked it. At the time I was already aware of autoerotic behavior, so this didn’t seem too off-the-wall to me as a potential defense. Almost all forensic pathology and death investigations texts have a section on the deadly act of autoeroticism. So I researched “choking during sex” and came across quite a bit of research and current research about the “choking game,” and “erotic asphyxiation.” There is confusion over application ofthe term and the scope of the behavior. There is even a website that describes why, in the writer’s view, women like to be choked during sex, and how to do it properly. Like autoeroticism, the choking game can be deadly or cause serious harm.

Since that case I have had a number of cases where the complaining witness alleges she was choked while being raped, and I have investigated that as a possible defense. I have several appeals now where this issue is clearly presented. But in each of these appellate cases the defense counsel ignored or pooh-pooed the idea that the client was telling the truth about rough sex involving choking and so may have missed a potentially valid defense.

Drug induced psychosis as a defense

June 14, 2014 | The Law Office of Philip D. Cave

Reports regarding an Irish court-martial and litigation involving Lariam are most interesting. Partly because of a case pending decision in the United States Court of Appeals for the Armed Forces.

The Irish Times reports that:

Taoiseach Enda Kenny has defended the Army’s continued use of the controversial anti-malaria drug Lariam, five years after the US military which pioneered the drug dropped it in the face of health concerns and legal actions from members of the military.

Exchange, shoplifting, and medication.

January 16, 2010 | The Law Office of Philip D. Cave

A lieutenant colonel said because he suffers from kleptomania he should not be court-martialed for shoplifting last year at Fort Benning, Ga.

Lt. Col. Rodney Page, a 28-year Army veteran, admits to stealing $37 worth of challenge coins at the post exchange, but he blames the Army for mistakenly reducing medication he takes to curb his urge to steal.

“That impulse is so strong that it just overrides your common sense,” said Page, 58, recalling the theft. “I am ethical, even though I have this problem. I’ve never taken anything from anyone I know. You can leave money on the table; I’m never going to touch it.”

Failures in care of combat stressed Soldiers leading to blue on blue incidents?

October 20, 2009 | The Law Office of Philip D. Cave

MiamiHerald.com

An American soldier accused of killing five fellow troops at a counseling center in Iraq had been unraveling for nearly two weeks but the U.S. military lacked clear procedures to monitor him or deal with the deadly shooting spree once it began to unfold, a military report found.

The shooting deaths drew attention to the issues of combat stress and morale as troops have to increasingly serve multiple combat tours because the nation’s volunteer army is stretched thin by two long-running wars.

Key lapses in assistance, care, and observation of troubled soldiers.

New ACCA decision

October 6, 2009 | The Law Office of Philip D. Cave

United States v. Brasington, ARMY 20060033 (A. Ct. Crim. App. 5 October 2009).

On 10 September 2008, our superior court granted appellant’s petition for grant of review on the following issue:

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE TRIAL DEFENSE COUNSEL ALLEGEDLY PROVIDED INCOMPETENT ADVICE REGARDING THE LACK OF THE DEFENSE OF MENTAL RESPONSIBILITY.

Vaccine programs – Anthrax, now flu?

September 29, 2009 | The Law Office of Philip D. Cave

September 29, 2009, in Suits & Sentences.

Troops lose challenge to anthrax vaccination

Eight members of the U.S. military who challenged a mandatory anthrax vaccination have lost, again.

Like the phoenix this is an old story that is likely to rise again in light of the proposed DoD flu shot program. Don’t know about others, but I’ve already been contacted by several pregnant or nursing military personnel who want to refuse the flu vaccine because of concerns about their baby.

Shoplifting.

September 17, 2009 | The Law Office of Philip D. Cave

Did Iraq veteran’s PTSD spark his shoplifitng charge? By Julia O’Malley | Anchorage Daily News.

Do you have client accused of shoplifting, a senior officer or senior enlisted perhaps, a really good person who no-one would have imagined as stealing from the Exchange? Can you explain that?

For some years I have successfully argued from this book (e.g. in a Gen. Off. Art.15, or with the AFBCMR).

Will Cupchik, Why Honest People Shoplift or Commit Crimes of Theft (Revised), Tagami Comms., 2002