Court-Martial Trial Practice Blog

The sager comes to an end

February 4, 2018 | The Law Office of Philip D. Cave

In United States v. Sager, the accused was convicted of abusive sexual contact because the victim was “otherwise unaware” of the acts. The Navy-Marine Corps Court of Criminal Appeals affirmed the findings and sentence. Appellant petitioned the CAAF.

This case is before us for a second time. The Court of Appeals for the Armed Forces (CAAF) reversed our earlier opinion affirming the appellant’s conviction for abusive sexual contact.2 At the heart of the appellate litigation in this case is a question over the interpretation of Article 120(b)(2), UCMJ, which proscribes sexual contact with people the accused knows, or reasonably should know, are incapable of consenting to the contact because they are “asleep, unconscious, or otherwise unaware” that the contact is occurring. The unusual posture of this case after trial required us to decide whether the terms asleep, unconscious, and otherwise unaware represented distinct theories of criminal liability. In our first review of this case, we held that they do not. Rather, we held that the reasons for a victim’s lack of awareness, be it sleep, unconsciousness, or something else, were only relevant to whether the accused should have known that the victim was unaware of the contact.

The CAAF held that our interpretation was incorrect. Reversing this court, the CAAF held that “asleep, unconscious, or otherwise unaware” represents three separate theories of liability. The CAAF also held that the term otherwise unaware means unaware in a manner different from both sleep and unconsciousness.

Pretrial agreement terms

February 4, 2018 | The Law Office of Philip D. Cave

In general a court-martial accused can waive most rights and privileges in a pretrial agreement. A common term where there are multiple accuseds (drug or sexual assault cases for example) is an agreement to testify truthfully in another court-martial. But,

Rule for Courts-Martial (R.C.M.) 705(c)(1) expressly prohibits terms or conditions of a PTA that are not voluntary or that deprive an accused of certain rights. “The interpretation of a pretrial agreement is a question of law, which is reviewed under a de novo standard.” United States v. Acevedo, 50 M.J. 169 172 (C.A.A.F. 1999).

And

Discovery failures

January 30, 2018 | The Law Office of Philip D. Cave

All current rape and serious sexual assault cases in England and Wales are to be reviewed “as a matter of urgency” to ensure evidence has been disclosed.

Director of Public Prosecutions Alison Saunders warned the review could see “a number of cases” dropped.

It comes after the collapse of several rape trials because evidence had not been shared with defence lawyers.

CLE required in your state, come to Williamsburg, VA

January 20, 2018 | The Law Office of Philip D. Cave

I’m used to having some media interest in my cases or being asked to comment on someone else’s. With that in mind, I try hard to be careful on staying within bounds of what can be said or which can but shouldn’t.

The 48th Criminal Law Seminar for VACLE has this module.

Trial Publicity, Social Media, and Case Commentary: Can Litigating in the Court of Public Opinion Get Lawyers into Trouble?

Prosecutor games

January 13, 2018 | The Law Office of Philip D. Cave

[V]iolations of Brady are the most recurring and pervasive of all constitutional procedural violations, with disastrous consequences: innocent people are wrongfully convicted; the reputation of U.S. prosecutors suffer; and the absence of meaningful legal and ethical enforcement and accountability has a corrosive effect on the public’s perception of a justice system that often appears to be arbitrary, unjust, and simply unreliable.

Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 Case W. Res. L. Rev. 13, 15 (2007).

Worth the Read

December 25, 2017 | The Law Office of Philip D. Cave

Lagano, Edmundson, and Grant, The Air Force SVC Program, The First Five Years. 44 (3) The Reporter 31 (2017).

Welch, Child Pornography, The Internet, and MRE 414. 44(2) The Reporter 19 (2017).

Victim impact input prior to sentencing

December 25, 2017 | The Law Office of Philip D. Cave

The Air Force Court of Criminal Appeals (AFCCA) has issued an interesting en banc (5-3) opinion in United States v. Hamilton, 76 M.J. ___ (A. F. Ct. Crim. App. 2017), about victim impact evidence or statements.

The accused pleaded guilty to the possession and distribution of child pornography. On sentencing, as we often see in these cases, the prosecution introduced unsworn statements of the victims, all of which predated the accused’s date of offenses. For those who haven’t been exposed to these statements, generally, they review the abuse that occurred at the time the video or image was taken and the subsequent life and health effects on the victim. We know that courts allow such information because of the idea that a victim is re-victimized each time a person views or distributes the images–it’s essentially an ongoing crime. Slip op. at 7-8.

I think there are several takeaways for practitioners.

Just interesting

December 10, 2017 | The Law Office of Philip D. Cave

There was a time when the military allowed people to learn from their mistakes. There were times that people were allowed to get away with “murder” under that philosophy. So times changed, largely as a result of the “zero tolerance” of drug abuse. So, more and more we have, it can be argued, reached a point of intolerance for error and no longer allowing people to benefit and learn from mistakes.

In this context, the comment on an USMA investigation is interesting.

“USMA stands behind Cadet x, as it stands behind our young men and women who choose to become part of it at great personal expense in order to emerge on the other end as leaders of character,” the academy statement said. “These are leaders who are not immune from mistakes or their consequences but who are uniquely equipped to learn and grow from them.”

Ongoing military death case

November 20, 2017 | The Law Office of Philip D. Cave

United States v. Hennis.

Appellant’s case is before this Court for mandatory review under Article 67(a)(1), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(a)(1) (2012). Appellant has filed a consolidated motion requesting, in relevant part, appointment of appellate defense team members pursuant to the Army’s capital litigation regulation, as well as funding for learned counsel, a mitigation specialist, and a fact investigator. We conclude that this Court does not have the constitutional, statutory, or regulatory authority to provide Appellant with the relief he seeks. Accordingly, we deny Appellant’s motion.

Military courts in the future

November 18, 2017 | The Law Office of Philip D. Cave

Why Military Courts Won’t Prevent The Next Texas Church Shooting, in Stars & Stripes, repeated in Task & Purpose.

Former airman Devin P. Kelley had choked his wife and put a gun to her head. He’d fractured her baby’s skull. He’d made threats to his commanders and he’d been committed to a mental hospital. Those acts foretold Kelley as a potential killer, experts say, and make the Air Force’s failure to enter his name into an FBI database especially egregious.

For those looking for the future of changes to the UCMJ and the MCM, there are a number of seeds in this article.