Uncategorized Category Archives — Page 33 of 110 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Words of wisdom

May 20, 2016 | The Law Office of Philip D. Cave

There is an interesting issue in the UK about an outspoken general officer commenting on political matters. As you read the article below you’ll see that the UK is no different than the US in response to outspoken flag and general officers.

Philip Hammond ‘tried to court-martial senior general’, new book claims

General Sir Richard Shirreff, who served as NATO’s deputy supreme allied commander for Europe until 2014, said before standing down from the post the Government was taking “one hell of a risk” by cutting the regular army.

Members problems

May 18, 2016 | The Law Office of Philip D. Cave

The members selection process is often at issue in a court-martial. One of the common concerns is the selection based purely on rank–usually the very senior. So, CAAF is about to enter the discussion again based on a grant yesterday.

No. 16-0391/MC. U.S. v. Emmanuel Q. Bartee. CCA 201500037. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

THE SYSTEMATIC EXCLUSION OF INDIVIDUALS BY RANK FROM THE MEMBER-SELECTION PROCESS IS PROHIBITED. HERE, THE MILITARY JUDGE DISMISSED THE PANEL FOR VIOLATING ARTICLE 25, UCMJ, BUT THE CONVENING AUTHORITY RECONVENED THE EXACT SAME PANEL THE SAME DAY. IS THIS SYSTEMATIC EXCLUSION BASED ON RANK REVERSIBLE ERROR?

Troubling, very troubling

May 16, 2016 | The Law Office of Philip D. Cave

The CAAF has decided United States v. Rogers, __ M.J. ___ (C.A.A.F. 2016) today.

The issue under consideration was a challenge to a member–the senior member–for implied bias that was (as CAAF now says, wrongly) denied by the military judge. The issue and decisions are not so troubling; the whole question of challenges to members is quite common and should be pretty well understood.

What is most troubling however–AGAIN–is the basis for the challenge and the continuing false and misleading information given out in sexual assault training!

New issues

May 14, 2016 | The Law Office of Philip D. Cave

The Court of Appeals for the Armed Forces has been active recently in a number of grants of review. What is noteworthy has been the grant of three cases in which it was the client who raised an issue through a United States v. Grostefon pleading.

This confirms my own thought that Grostefon issues ought to be raised.

No. 16-0229/AF. U.S. v. Ellwood T. Bowen. CCA 38616. 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 specified by the Court:

A decision from the 10th that might be applicable to military parolees

May 11, 2016 | The Law Office of Philip D. Cave

There are two ways a military prisoner gets out: serve to their minimum release date or get parole. Either way, the person is going to be placed into a strict form of post-release conditions. For those who get to their MRD they will go into the Mandatory Supervised Release Program.

MSR (Mandatory Supervised Release) is very similar to parole. Individuals released on MSR must adhere to the conditions of release and are under the direct supervision of a parole/probation officer. Individuals released via MSR remain under supervision and must abide by all conditions of release for the full length of their sentence unless a portion of the sentence has been remitted by the Board. After successful completion of MSR, individuals are released from supervision and have fully served their sentence. An individual who violates the conditions of MSR is subject to sanctions for misbehavior that range from warnings to revocation of MSR and return to military confinement.

The individual on parole and MSR is under the direct supervision of a United States Probation Officer (USPO) until the full sentence has been served or the Army Clemency and Parole Board remits the remaining portion of his sentence. The difference between the two is an individual is eligible for parole after serving one-third or more of his/her sentence, while an individual released on MSR is released when he has served until his minimum release date and has submitted an acceptable release plan. Failure to provide an acceptable release plan could require the individual to serve his full sentence in confinement.

Pay issue on rehearing

May 10, 2016 | The Law Office of Philip D. Cave

You are confined, your case is appealed, your case is reversed and a new trial ordered.

You will stay in confinement–pretrial confinement.

But what about all the pay you lost while confined.

Why worry what’s on your phone

May 8, 2016 | The Law Office of Philip D. Cave

“Washington’s Supreme Court has thrown out the convictions of three men in what police called a gang-related shooting, finding among other things that music on one defendant’s phone was not evidence of gang ties.”

That’s the headline from the Seattle Times.

The slip opinion in State (Washington) v. Deleon is here.

Worth the Read

April 30, 2016 | The Law Office of Philip D. Cave

Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches, 69 Vand. L. Rev. 585 (2016)

Margaret Dodson, Bruton on Balance: Standardizing Redacted Codefendant Confessions Through Federal Rule of Evidence 403, 69 Vand. L. Rev. 803 (2016)

Clemency from the Prez.

April 28, 2016 | The Law Office of Philip D. Cave

This week, the Combat Clemency Project at the University of Chicago Law School petitioned for a Presidential Pardon on behalf of Corey R. Clagett, a former Army PFC released on March 31, 2016 from the US military prison at Fort Leavenworth, Kansas after a decade of incarceration. https://petitions.whitehouse.gov/petition/review-combat-clemency-petitions-and-pursue-military-mental-health-reform

A powerful reminder

April 8, 2016 | The Law Office of Philip D. Cave

It should go without saying that a court-martial is a most serious matter, and the requirement for proof beyond a reasonable doubt plays a vital role in the legitimacy of the military justice system. A “society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.” In the military justice system, where servicemembers accused at court-martial are denied some rights provided to other citizens, our unique factfinding authority is a vital safeguard designed to ensure that every conviction is supported by proof beyond a reasonable doubt. This authority “provide[s] a source of structural integrity to ensure the protection of service members’ rights within a system of military discipline and justice where commanders themselves retain awesome and plenary responsibility.”

United States v. Rivera, No. 38649, 2016 CCA LEXIS 92 (A.F. Ct. Crim. App. Feb. 18, 2016)(unpub.).