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December 22, 2023 | The Law Office of Philip D. Cave

On December 6, 2023, the Secretary of the Army, Ms. Christine Wormuth, fired Brigadier General (BG) Warren Wells, the Army’s chief prosecutor and head of the Office of the Special Trial Counsel (OSTC), for an email he had sent ten years prior while in a defense counsel role. This firing demonstrates that no military defense counsel can be certain that doing their job and defending you will not come back to haunt them down the road. It will always be in the back of their minds.

In 2013, Warren Wells was a Lieutenant Colonel and a Regional Defense Counsel supervising the Senior Defender Counsel at several Army bases and their subordinate military defense counsel. He sent an email to his Senior Defense Counsel on various defense matters that included a paragraph commenting on the pressure put on the Army by Congress and the media to send sexual assault cases to trial and then stated that they, as defense counsel were the last line of defense for the innocent. Ten years later, when Ms. Wormuth read the email, she found this sentiment so outrageous that she fired BG Wells within hours!

Today, every military defense counsel knows (especially in the Army) that something they do or say in your defense can be held against them in the years to come when they are up for promotion or in a different position as a JAG. The military branches try to have independent defense counsel while they are in defense counsel positions, but as the BG Wells story illustrates: nothing protects them when they are no longer in a defense counsel position. Your military defense counsel will hopefully do their best to represent you anyway, but he or she is not conflict-free, no matter how hard they try.

Article 15/NJP Refusal

November 15, 2023 | The Law Office of Philip D. Cave

The Secretary of the Navy has issued a significant change to Article 15/NJP procedures for service personnel assigned to or embarked on a vessel.

The Navy’s vessel exception is part of the Uniform Code of Military Justice (UCMJ) that allows the Navy to deny service members the right to demand a court-martial instead of nonjudicial punishment (NJP) if they are “attached to or embarked in a vessel.” This exception was created in 1962 to give the Navy more flexibility in disciplining sailors at sea, where conducting a court-martial can be logistically challenging and time-consuming.

The vessel exception has been controversial since its inception, many of us as military defense counsel have been critical of it, arguing that it strips sailors of their due process rights. In recent years, there have been calls to repeal the exception, and in 2023, the Navy announced that it would be expanding the circumstances in which sailors can refuse NJP. That change is here and your military defense lawyer can help you understand the change and how you might benefit from it.

False official statements

July 29, 2023 | The Law Office of Philip D. Cave

The UCMJ makes it an offense under Article 107 to:

Sign a false record, return, regulation, order, or other official document, when you knew it was false; or
Make any verbal/oral false official statement when you knew it was false.

Impeaching the verdict

February 16, 2023 | The Law Office of Philip D. Cave

United States v. Filmore.

1. If a victim testifies on sentencing–the rules of evidence apply the same as any other witness. Article 6b does not waive the rules of evidence when a victim testifies in sentencing. (Note, the victim gave both sworn and unsworn statements.) Failure to follow the rules (even without defense objection) gets the defense and government, and court to agree there was an error and to get a new sentencing hearing.[1]

2. It is NEVER EVER a good idea for an accused (or one of his witnesses)[2] to impeach the verdict. Gone are the days when we could legally seek reconsideration of the findings, even through sentencing. The legitimate tactic at the time was to present the accused’s version of events through his unsworn and then argue that the members may wish to reconsider the findings.

NDAA FY 2023, new changes in the offing?

July 18, 2022 | The Law Office of Philip D. Cave

A press release alerts us to several proposals for the NDAA FY 2023 which could affect military justice. One addresses Supreme Court access (something NIMJ has long advocated for), and another is the question of unanimous verdicts post-Ramos v. Louisiana. A third addresses a suspect’s records (and their removal) when “Service member is subject to non-judicial punishment for the offense to which the record pertains; or is pardoned for the offense to which the record pertains.” You can find the House Armed Services Committee actions here. We get many requests from persons who want to have criminal records expunged when their case is not referred to court-martial but is dealt with by Article 15 (NJP) or administrative discharge. These records often wrongly suggest the person was “convicted.” They also can be retrieved by current and future employers when making a hiring decision. So, the “Titling” of a subject on MCIO investigation can be affected for the rest of their life, even when not convicted of something.

Courtesy GMJR.

For those following the ongoing litigation in Dial, here is a link to the current status (18072022).

Another level for discharge reviews

June 1, 2022 | The Law Office of Philip D. Cave

Let’s begin with 10 U.S.C. § 1553a.

(a)Establishment.—

The Secretary of Defense shall establish a process by which to conduct a final review of a request for an upgrade in the characterization of a discharge or dismissal.

Can an alleged victim sue to stop discovery in a court-martial

April 26, 2022 | The Law Office of Philip D. Cave

Probably not successfully based on AV2 v. McDonough, No. 22-369, 2022 U.S. Dist. LEXIS 72609 (D.D.C. April 20, 2022) and E.V. v. Robinson, 906 F.3d 1082, 1086 (9th Cir. 2018) certiorari den. 140 S.Ct. 501, 205 L. Ed. 2d 316 (2019).

In each of these cases, a military judge had granted discovery of mental health information that the alleged victims claimed was protected by Mil. R. Evid. 513, in other words, the military judge was wrong. They had sought relief from the Court of Criminal Appeals and from the Court of Appeals for the Armed Forces without success.

The basis for seeking a writ was essentially that

Sexual harassment

April 23, 2022 | The Law Office of Philip D. Cave

Well, calls for change to the new changes for the prosecution of sex crimes have already begun. During the Conference over the NDAA FY 22, sexual harassment was removed from the list of covered offenses under the jurisdiction of a special trial counsel (STC). But, the President was tasked to enumerate an offense of sexual harassment under UCMJ art. 134. The President did so (along with other changes) in Executive Order 14062, of January 26, 2022, Annex at 21.

(1) That the accused knowingly made sexual advances, demands or requests for sexual favors, or knowingly engaged in other conduct of a sexual nature;
(2) That such conduct was unwelcome;

Discovery by the defense

April 3, 2022 | The Law Office of Philip D. Cave

Does the defense in a court-martial under the Uniform Code of Military Justice (UCMJ) have to give discovery about your defense to the prosecution? Yes, sometimes.

There are several rules set out in the Manual for Courts-Martial that your military lawyer or civilian defense counsel knows about. The rules are contained in Rule 701.

Special defenses.

New evidence rules?

March 15, 2022 | The Law Office of Philip D. Cave

Last year the Committee on Rules of Practice and Procedure Judicial Conference of the United States requested public comment on proposed changes to several rules of evidence. On page 299 of the request, you will find the proposed evidence rules. We are most interested in Rule 702, which deals with experts and expert testimony.

The Daubert case was an effort to make the trial judge the gatekeeper of expert testimony to make sure it was reliable and relevant. However, the military appellate courts adopted Daubert and added their factors to consider over time. From this, we, or your military defense lawyer, will make Houser motions from time to time. United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993) sets out six factors a judge should use to determine the admissibility of expert testimony.

Qualified Expert. Expert witness must qualify as an expert because of some special knowledge, skill, experience, training, or education. See e.g., United States v. Roach, __ F. 3d ___ (8^th Cir. 2011). Eighth Circuit noted Rule 702 does not rank academic training over demonstrated practical experience. An individual can qualify as an expert where he possesses sufficient knowledge gained from practical experience, even though he may lack academic qualifications in the particular field of expertise.