Worth the Read Category Archives — Court-Martial Trial Practice Blog Published by International Military Lawyer

Accepting a pardon is accepting guilt?

September 26, 2021 | The Law Office of Philip D. Cave

With the Trump pardons, the question came up, again, whether accepting a Presidential pardon is an acknowledgment of guilt.

For many, Burdick v. United States, 236 U.S. 79 (1925), answered the question in the affirmative. In Burdick, the appellant was offered but declined a pardon. He then refused to testify in a criminal trial. Several conclusions seem to follow from the opinion.

A pardon can be given before conviction and sentence. If correct, this settles the discussion about several Trump pardons issued before the servicemember was tried.

Worth the Read–a case of parole.

October 20, 2020 | The Law Office of Philip D. Cave

There is a report of SGT Hatley being released from prison after 11 years confinement.

The ACCA’s 2011 opinion is here.

An enlisted panel sitting as a general court-martial convicted appellant, contrary to his pleas, of conspiracy to commit premeditated murder and premeditated murder, in violation of Articles 81 and 118, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 881 and 918. Appellant was acquitted of an additional offense of premeditated murder and obstruction of justice.

A bit of history

September 26, 2020 | The Law Office of Philip D. Cave

The Jeffrey MacDonald murder case: A timeline of a major events.

One of North Carolina’s most infamous murder cases is back in the national spotlight, with the release this week of the FX documentary series “A Wilderness of Error.”

Former Green Beret Army doctor Jeffrey MacDonald was convicted in 1979 of the murders of his pregnant wife, Colette, and two small daughters, Kimberley, 6, and Kristen, 2, in their Fort Bragg, N.C., apartment in 1970.

Duty calls–a duty to Google

September 4, 2020 | The Law Office of Philip D. Cave

As a reminder, Prof. Cole brings us, Michael Murphy (University of Pennsylvania Law School) has posted The Search for Clarity in an Attorney’s Duty to Google on SSRN.

Attorneys have a professional duty to investigate relevant facts about the matters on which they work. There is no specific rule or statute requiring that an attorney perform an internet search as part of this investigation. Yet attorneys have been found by judges to violate a “Duty to Google” when they have failed to conduct an internet search for relevant information about, for example, a claim, their own client, and even potential jurors in a trial.

So much information is now available to attorneys so easily in electronic search results, it is time to wonder where, when, and how much attorneys should be searching. This Article examines the following questions: is the “Duty to Google” merely yet another example of how attorneys must become proficient in technology to meet their professional ethical obligations? Or is it something more? Where should this duty be codified, if anywhere? At what point does technology like a search engine become so “mainstream” that attorneys have a duty to use it or face allegations of malpractice? How will attorneys know how much Googling is enough?

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

Motive to lie

June 20, 2020 | The Law Office of Philip D. Cave

We know that some people lie about being sexually assaulted.

We know that one of the reasons–motives–or as psychologists say “the secondary gain,” is to protect a marriage or relationship.

We know that some women are like men, they cheat on their spouse.

Worth the Read (WTR)–right to silence

June 4, 2020 | The Law Office of Philip D. Cave

Akorede Omotayo, The Right to Silence–or the Presumption of Guilt.

This is an interesting discussion from another country on something we are familiar with.

It will be recalled that the right to silence formerly comprises the privilege against self-incrimination and the right not to have adverse inferences drawn from his silence. Prior to the CJPOA, no evidential significance could be attached to an accused’s exercise of the right to silent, save when the accused and the victim were on even terms. However, theprovisions in the CJPOA, particularly ss 34-35 have sought to alter this principle to the extent that the question that this essay grapples with, is whether the right to silence,despite the changes, is still useful in protecting an accused’s supposed ‘constitutionalright’ of innocence, until proven guilty.

Case of interest

November 28, 2019 | The Law Office of Philip D. Cave

From time to time I bring attention to a civilian case that may be of interest to practitioners. Mostly these are post-CAAF cases arising from the USDB. So today I have Coleman v. Commandant., decided 22 November 2019, in the USDC Kansas.

This matter is a pro se petition for habeas corpus filed under 28 U.S.C. § 2241. Petitioner was granted leave to proceed in forma pauperis. Because Petitioner is confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas, this matter was transferred to this Court from the District of North Dakota. Petitioner seeks to set aside his 2012 conviction by general court-martial, based on the holdings in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) and United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).

Petitioner, a former active duty member of the United States Air Force, was tried in September 2012 by general court-martial at Minot Air Force Base, North Dakota. Contrary to his pleas, Petitioner was convicted of one specification of rape, three specifications of aggravated sexual assault, and one specification of forcible sodomy, in violation of Articles 120 and 125 of the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. §§ 920, 925. Petitioner was sentenced to a dishonorable discharge, confinement for twelve years, forfeiture of all pay and allowances, and a reduction to the grade of E-1. On March 1, 2013, the convening authority approved the sentence.

Prosecutorial discretion–WTR

October 6, 2019 | The Law Office of Philip D. Cave

American Prosecutors’ Powers and Obligations in the Era of Plea Bargaining. Darryl K. Brown [University of Virginia School of Law].

I. Introduction

American prosecutors are generally understood to have a lot of power, and that power is often the subject of criticism. But whether American prosecutors’ power is problematic depends on the structure and operation of other components of the criminal justice system the code defining substantive offenses, the capacity and competency of police and investigative agencies, the law of sentencing, the typical mode of adjudication (trials or pleas), prison capacity, and funding levels for enforcement officials and courts.Prosecutors are empowered by some of these other actors and institutions, and they are constrained by others. Positive law gives prosecutors considerable power, especially by granting broad charging discretion, but it also limits that power in a couple of significant respects. Moreover, the mix of prosecutors’ powers, and potential for abuse of power,varies across American jurisdictions. Federal prosecutors are limited in important ways that state prosecutors are not, especially as to plea bargaining. Likewise, state prosecutors face constraints that their federal counterparts do not, particularly as to charging discretion. Whether prosecutor power is problematic depends on other components of the criminal justice system in which that power is exercised. In turn, the flaws of American criminal justice, in turn, arise as much from institutional arrangements that are ill-suited for particular prosecutorial powers as they do from those powers per se.

Suicide issues in the military

September 24, 2019 | The Law Office of Philip D. Cave

If you, like me and some of my colleagues, have personal experiences from military clients who commit, get stopped in the act, or consider suicide while pending court-martial, you are facing a difficult challenge.

My first was a client I was representing on appeal who hung himself in the SHU at the USDB. Sadly, I’d gotten the Dubay judge’s findings and conclusion which lead me to think he was getting a new trial. He died not knowing that. I’d written to him telling him what I thought would be good news. The mail room allegedly refused to give him that letter which lead to a chain of events ending with him in the SHU.

We all have to be sensitive to clients in distress. Sometimes it’s hard to tell if the client is experiencing the “normal” stresses of being in trouble.