Worth the Read Category Archives — Page 9 of 20 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Yes they can–yes the CCA can order a sentence-only rehearing

August 12, 2015 | The Law Office of Philip D. Cave

The problem is that the CCA’s don’t do that enough. But at least they have the power.

The underlying issue is whether Article 66(d), UCMJ, authorizes the CCAs to order sentence-only rehearings. The government argues that the CCAs do not have that authority and asks that we overrule this court’s decision in United States v. Miller, 370 C.M.A. 296, 27 C.M.R. 10 (1956), in which we specifically recognized the authority of the CCAs to order sentence-only rehearings. The government asserts that Miller was wrongly decided in light of Jackson v. Taylor, 353 U.S. 569 (1957).

Quote of the day-week-year

July 27, 2015 | The Law Office of Philip D. Cave

Sixty years after Congress created the UCMJ to protect accused servicemembers from abusive and arbitrary punishment, a significant faction in Congress now believes it must be almost completely dismantled and restructured because is is not being used aggressively enough. Multiple federal organizations and a fair number of outside parties consider the notion of due process in student disciplinary hearings, the result of courage in the civil rights era, as an obstacle to be overcome or circumvented in the name of “accountability.” The federal government has used its formidable authority to shape institutional responses to sexual assault, but the aggressive rush to “fix” the problem subordinates notions of due process, truth-seeking, and even the presumption of innocence. Fueled by an underlying assumption that too few perpetrators are sufficiently punished, the poignant and emotionally-charged environment of sexual assault threatens otherwise broadly accepted principles of justice. And in that setting, it is difficult for anyone in a position of both power and publicity to argue for policies that will be seen as making it harder to punish rapists. Nonetheless, the “obligation to govern impartially is as compelling as [the] obligation to govern at all.”[1]

MAJOR ROBERT E. MURDOUGH, BARRACKS, DORMITORIES, AND CAPITOL HILL: FINDING JUSTICE IN THE DIVERGENT POLITICS OF MILITARY AND COLLEGE SEXUAL ASSAULT. 223 MIL. L. REV. 233 (2015).

[1] Berger v. United States, 295 U.S. 78, 88 (1935).

Worth the Read from Military Law Review

July 27, 2015 | The Law Office of Philip D. Cave

There are some interesting articles for military justice practitioners in the Summer 2015, MLR.

Barracks, Dormitories, and Capitol Hill: Finding Justice in the Divergent Politics of Military and College Sexual Assault
Rudderless: 15 Years and Still Little Direction on the Boundaries of Military Rule of Evidence 513
Open-Ended Pharmaceutical Alibi: The Army’s Quest to Limit the Duration of Controlled Substances for Soldiers

A Better Understanding of Bullying and Hazing in the Military

Worth the Read

July 16, 2015 | The Law Office of Philip D. Cave

New Developments in Criminal Law: Child Pornography and Appellate Review, by MAJ Jeremy Stephens.

THE ABUSE OF DISCRETION STANDARD OF REVIEW IN MILITARY JUSTICE APPEALS, by COLONEL JEREMY STONE WEBER.

I wonder if Sen. G knows?

June 4, 2015 | The Law Office of Philip D. Cave

A former client directed me to the Air Force Reporter, Vol. 42, No. 1 (2015).

In reading about an aspect of his case, my eyes rolled down to this. It is on page 50.

CASE 2 Prior to a court-martial, a Special Victims’ Counsel (SVC) advised a client that the SVC would not be attending the trial in person due to a personal conflict, but that if the client needed anything to let the SVC know. The SVC did not notify supervision and did not make arrangements for another SVC to attend the trial in their absence. The court-martial started with several motions that involved the client. Following the motions hearing, the client contacted the SVC and requested that the SVC attend the remainder of the court-martial. The SVC attended the remainder of the court-martial proceedings.

This is important to today as well

April 19, 2015 | The Law Office of Philip D. Cave

The Washington Post has a report today:

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

Worth the read

March 10, 2015 | The Law Office of Philip D. Cave

A couple of items have come across the transom today which are worth the read to military practitioners.

James E. Baker, Is Military Justice Sentencing on the March? Should it be? And if so, Where should it Head? Court-Martial Sentencing Process, Practice, and Issues, Fed. Sentencing Rep. Dec. 2014, at 72-87. This items comes from the current Chief Judge, the Court of Appeals for the Armed Forces. His term of office will expire shortly, but the name of a new judge is not yet published. By tradition, the next senior judge will fleet up to become the chief judge.

Col Robert F. Holland, USA, JA (Ret), Unique Procedural Aspects of Court-Martial Sentencing by Jury (sic), 27 Fed. Sentencing Rep., No. 2, Dec. 2014.

Worth your read-pretrial agreements

January 24, 2015 | The Law Office of Philip D. Cave

Military law and practice requires that any pretrial agreement discussions be conducted between the defense, the prosecutors, and the convening authority. The military judge is not allowed to be involved. The military judge’s involvement is during trial when she reviews a PTA with the accused to ensure it is all transparent and that it’s terms do not offend law or significant policy considerations. Historically, courts have been reluctant to permit agreements to incorporate terms that deprive an accused of basic fundamental rights. See e.g., United States v. Callahan, 22 C.M.R. 443 (A.B.R. 1956); United States v. Cummings, 38 C.M.R. 174, 177 (C.M.A. 1968); and United States v. Schmeltz, 1 M.J. 8 (C.M.A. 1975). R.C.M. 705 specifically lists examples of permissible and impermissible terms in a pretrial agreement.

The Court of Military Appeals in United States v. Schaffer, 12 M.J. 425, 428 (C.M.A. 1982) opened the door to non-traditional bargained for PTA provisions when it expressly acknowledged a judicial willingness to accept more complex PTAs, especially when the proposed term is proposed by the accused and his defense counsel. For some odd terms the courts don’t like:
An agreement providing for a reduction of the accomplice’s confinement sentence by one year for each occasion that the accomplice testified against his co-accused. The court in United States v. Scoles, 33 C.M.R. 226, 232 (C.M.A. 1963) held that the agreement “offered an almost irresistible temptation to a confessedly guilty party to testify falsely in order to escape the adjudged consequences of his own misconduct.”

Worth the read for your weekend

January 16, 2015 | The Law Office of Philip D. Cave

“[W]e recognize that electronic communications are susceptible to fabrication and manipulation.”

Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012). Campbell and a number of other state and federal cases were support for my objection to text messages in a case this week. I had a 120 which as usual had text messages as evidence by the prosecution – and I objected to authenticity. Without going in to all of the facts, here are a few I thought relevant.

The CW had dropped her phone in the bath tub and it was no longer available for forensic examination. In my last seven 120 cases this is the second bathtub-drop, along with two drop-and-breaks and one turn it in. I’m beginning to get suspicious of what CW’s are being told once the photo of the text is cherry-picked and turned in.

Worth the read for a coming weekend

January 3, 2015 | The Law Office of Philip D. Cave

In Founding Myths: Stories That Hide Our Patriotic Past, by Ray Raphael, one of his issues of inaccurate historical reporting is about Paul Revere. The book is incisive, well-written, and well worth the read.

So it is in this context that I mention Michael Greenberg’s, The Court-Martial of Paul Revere: A Son of Liberty and America’s Forgotten Military Disaster, published in late 2014.

Lieutenant Colonel Revere defended himself against accusations of dereliction and disobedience. At trial he “confessed that he had initially disobeyed an order to deliver a barge to the general in charge, but once he remembered that General Wadsworth was his leader, he delivered the barge.” The disobedience sounds more serious – “On the question of leaving the area without orders to do so, Revere testified that there was such a state of confusion he shouldn’t have been expected to do otherwise.” Revere was found not guilty. From then began a long public relations campaign to restore his reputation – something accomplished by the time of his death in 1818 apparently.