Court-Martial Trial Practice Blog

Novelty but not fun to the Appellant

August 9, 2018 | The Law Office of Philip D. Cave

As this case demonstrates, the novelty of an assimilative charging decision under Article 134 often wears off during the course of an appeal,

Says ACCA in a footnote to United States v. Meredith, 7 August 2018.

Specification 1 of Charge II alleged appellant violated the Computer Fraud and Abuse Act (CFAA), 10 U.S.C. § 1030, by obtaining the sex videos from HN SS’s and KS’s computer. We agree with the parties that the evidence for the Article 134 offense assimilating the CFAA, specifically, 18 U.C.S. § 1030(a)(2), was legally and factually insufficient.

Is blood spatter evidence good

August 6, 2018 | The Law Office of Philip D. Cave

From friend BW.

State commission calls blood-spatter testimony in murder case ‘not … scientifically supported’ By Pamela Colloff, ProPublica, July 24, 201

An influential state commission said the blood-spatter analysis used to convict a former Texas high school principal of murdering his wife in 1985 was “not accurate or scientifically supported” and the expert who testified was “entirely wrong.” The findings of the Texas Forensic Science Commission, a national leader in forensic science reform, called into question the conviction of Joe Bryan, who has now spent more than 30 years in prison. Bryan was the subject of a two-part investigation by ProPublica and The New York Times Magazine in May that questioned the accuracy of the bloodstain pattern analysis used to convict Bryan, as well as the training of the experts who testify in such cases.

Plea agreement waivers

August 5, 2018 | The Law Office of Philip D. Cave

Navy Times reports the NMCCA decision in United States v. Saugen. “Ensign Joseph P. Saugen, 26, remains in San Diego’s Naval Consolidated Brig Miramar serving a three-year sentence after pleading guilty to two specifications of possessing child pornography and another for distributing the illicit videos.”

In Saugen, the Appellant executed a pretrial agreement. One of the standard terms in that agreement was,

to waive all motions except those that are otherwise nonwaivable pursuant to [RULE FOR COURTS-MARTIAL] 705(c)(1)(B). I have not been compelled to waive my right to due process, the right to challenge the jurisdiction of the court-martial, the right to a speedy trial, the right to raise the issue of unlawful command influence, or any other motion that cannot be waived. I have no motions to bring and I am not aware of any motion that was waived pursuant to this provision. [1]

Security clearance updates

August 2, 2018 | The Law Office of Philip D. Cave

For the past two years, the Defense Security Service (DSS) has been advising security officers to submit periodic reinvestigations for Tier 5 (Top Secret) investigations at the 6 year mark, rather than 5 years. The move was an effort to reduce the growing security clearance backlog, and allow the National Background Investigations Bureau (NBIB) to make initial investigations a priority. Like most directives, however, implementation has created confusion across some offices. Security officers who merely look at the date without the context of the policy directive may have refused access to individuals with out of scope investigations, despite numerous policy memos noting that security clearance eligibility doesn’t expire if the candidate remains in-access.

In a sign the government aims to keep the 6-year PR rather than move back to 5 years, the Pentagon recently issued guidance clarifying that access to Special Access Programs (SAP) may continue even if investigations are past 6 years.

Previously, the personnel requirements for SAP were:

New page on CGCCA

August 2, 2018 | The Law Office of Philip D. Cave

The CGCCA is now posting appellate briefs in pending cases. An excellent additional resources for trial and appellate counsel.

https://www.uscg.mil/Resources/Legal/Court-of-Criminal-Appeals/Court-of-Criminal-Appeals-Appellate-Briefs/

A reminder on when to raise UCI

August 2, 2018 | The Law Office of Philip D. Cave

Seems to me that the best practice is to raise any possible UCI claims prior to trial on the merits–depending on when you learn of the alleged UCI.

The general rule is the defense does not waive UCI by failing to raise it at trial. Id. at 193. This rule, however, is not absolute. The United States Court of Appeals for the Armed Forces (CAAF) has distinguished UCI in the accusative phase (e.g., involving the preferral, forwarding, and referral of charges), from UCI in the adjudicative phase (e.g., interference with witnesses, judges, members, and counsel). United States v. Weasler, 43 M.J. 15, 17-18 (C.A.A.F. 1995). In making this distinction, the CAAF concluded claims of UCI during the accusative phase can be waived. Id. at 19 (“Where there is coercion in the preferral process, ‘the charges are treated as unsigned and unsworn,’ but the ‘failure to object’ constitutes waiver of the issue.”). The court has also found waiver of defects in the forwarding process if not challenged at trial. Id. (citing United States v. Hamilton, 41 M.J. 32, 36 (C.M.A. 1994)).

Having concluded referral is part of the accusatorial stage, we examine appellant’s knowledge of the facts at the time and whether appellant was in some way precluded from raising UCI at trial. “If command influence is known, or reasonably could be known in either the accusatorial stage or the selection process, failure to raise the issue constitutes waiver.” See United States v. Upshaw, 49 M.J. 111, 114 (C.A.A.F. 1998) (Crawford, J., concurring) (citing Weasler, 43 M.J. at 17).

A unit reminder

July 31, 2018 | The Law Office of Philip D. Cave

In Forrester, our superior court clarified that the unit of prosecution for possessing child pornography is tied to the material containing illicit images, and “not the quantity or variety of visual depictions.” Forrester, 76 M.J. at 481. In Mobley, we held when multiple illicit images or videos are possessed on a single computer, the computer is the “material” constituting the unit of prosecution. Mobley, slip op. at 5.

We conclude the proper unit of prosecution for both Specification 2 and Specification 3 is the appellant’s laptop computer, regardless of whether the images were found in allocated or unallocated space. Accordingly, we consolidate Specifications 2 and 3 of The Charge in our decretal paragraph.

The military judge correctly noted that several of the images at issue are duplicates. The number of images alleged, however, is irrelevant to the unit of prosecution and is surplus to the specification the government chose to draft. While the number of images is a proper matter in aggravation, it need not be alleged in the specification and may be offered as aggravating evidence through a stipulation of fact, or any otherwise proper form of evidence. For the purposes of alleging the offense of possession of child pornography under Article 134, UCMJ, it suffices to charge that an accused possessed “multiple” images.

What do you do after trial

July 31, 2018 | The Law Office of Philip D. Cave

Self-assessment. As a supervisor of counsel, I would ask them to come to me after trial and discuss what they think the three best and worst things they did. I was intent on mentoring them to reinforce the good and see if, any truly bad issues could be resolved in the future. Like you, I spend time after trial wondering ‘what if.’ Such ruminations are helpful and necessary. But . . .

The initial claim of ineffectiveness centered on an email appellant’s civilian defense counsel (CDC) sent his military defense counsel. In the email, the CDC expressed a low opinion of his trial performance, writing, “I screwed up crossing [the victim]. I alone was ineffective. . . .”

We first address the weight we should give the civilian defense counsel’s opinion contained in an email that he was “ineffective.” We give it slight weight for two reasons. First, as the Supreme Court has stated, “After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome.” Harrington v. Richter, 562 U.S. 86, 109 (2011). Second, a counsel’s subjective evaluation is of only marginal relevance in resolving an objective inquiry. Strickland requires an objective inquiry. 466 U.S. at 688.

A reason to make false statements in a MSA case

July 31, 2018 | The Law Office of Philip D. Cave

As for SPC KP [a witness to the alleged MSA], our doubts about her testimony are many. First, several witnesses shared their low opinion of SPC KP’s character for truthfulness, as well as SPC KP’s low reputation within the unit on this important trait. Second, SPC KP had a motive to fabricate, as the trauma she claimed to have suffered from witnessing this event were key factors in getting an exception to policy in order to obtain a service animal and achieve her longstanding wish to move out of the barracks. Third, her testimony was impeached in several instances by other witnesses. For example, SPC KP claimed that the morning after the incident, she told PFC HM everything she had witnessed in the bedroom. That is, what she related in her trial testimony was what she reported to PFC HM the morning after the party. By contrast, PFC HM was clear in her testimony that both SPC KP and PFC LC reported the next morning only that appellant was on top of PFC HM. Nothing more. In fact, when the incident was reported a few months later, PFC LC was surprised by the additional details related to SHARP personnel by SPC KP. In another example from the trial, SPC KP denied asking SPC MF about his Article 32 testimony, a denial later contradicted at trial by PFC MF. For these and other reasons, we find SPC KP’s testimony was not credible.

United States v. Sanders, ACCA 2018.

The “trauma” was from–

Worth-the-Read, grabbed few items

July 1, 2018 | The Law Office of Philip D. Cave

Here we go.

Carissa Byrne Hessick and F. Andrew Hessick, Procedural Rights at Sentencing. Notre Dame Law Review, Vol. 90, 2014 Forthcoming, University of Utah College of Law Research Paper, No. 80

In determining which constitutional procedural rights apply at sentencing, courts have distinguished between mandatory and discretionary sentencing systems. For mandatory systems ― systems that limit sentencing factors and specify particular punishments based on particular facts ― defendants enjoy important rights including the right to a jury, the right to proof beyond a reasonable doubt, the right to notice of potential sentencing aggravators, and the right not to be sentence based on ex post facto laws. By contrast, for discretionary systems ― systems that leave the determination of sentencing factors and how much punishment to impose based on particular facts to the judge’s discretion ― defendants do not enjoy these protections. This Article challenges this discrepancy.