Court-Martial Trial Practice Blog

UCMJ and MCM changes coming

July 2, 2017 | The Law Office of Philip D. Cave

The DoD Joint Service Committee on Military Justice has some new “publications” on its website. But more importantly, there are a number of proposed changes not yet on their site (but which are available on CAAFLog).

A draft Executive Order indicating an effective date for the MJA of January 1, 2019.
Annex 1 to the draft Executive Order, making changes effective immediately once the Order is signed. Of note, are changes to regulate the sealing of all or parts of the record, changes to MRE 311, which adds, “that the evidence was obtained by officials in objectively reasonable reliance on a statute or on binding precedent later held violative of the Fourth Amendment[.]” And,

Copious rations and heaping servings

June 24, 2017 | The Law Office of Philip D. Cave

The military does not have Alford pleas.

In an Alford Plea, the criminal defendant does not admit the act but admits that the prosecution could likely prove the charge. The court will pronounce the defendant guilty. The defendant may plead guilty yet not admit all the facts that comprise the crime. An Alford plea allows the defendant to plead guilty even while unable or unwilling to admit guilt. One example is a situation where the defendant has no recollection of the pertinent events due to intoxication or amnesia. A defendant making an Alford plea maintains his innocence of the offense charged. One reason for making such a plea may be to avoid being convicted on a more serious charge. Acceptance of an Alford plea is in the court’s discretion.

The military requires a person to plead not guilty or, if they plead guilty, they must engage in a detailed discussion on the record with the military judge. In that discussion, the person must give facts supporting the charge, agree that they committed the offense, and waive several constitutional rights. See United States v. Care, 18 C.M.A. 535, 40 C.M.R. 247 (1969); United States v. Hayes, 70 M.J. 454 (C.A.A.F. 2011).

Note for appellate counsel

June 24, 2017 | The Law Office of Philip D. Cave

By order of the Chief Judge, the United States Court of Appeals for the Armed Forces will be closed all day on Monday, July 3, 2017. For purposes of computation of time and motions to enlarge time under the Court’s Rules of Practice and Procedure, July 3, 2017, will be considered a day when the Court is officially closed. While not a preferred status, you have an extra day if butting up against the due date.

Supreme Court invalidates ban on social media for sex offenders

June 19, 2017 | The Law Office of Philip D. Cave

In 2002, Lester Packingham became a convicted sex offender at the age of 21, after he pleaded guilty to taking indecent liberties with a child – having sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he posted on Facebook to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that makes it a felony for a convicted sex offender to use social-networking websites, such as Facebook and Twitter, that allow minors to create accounts. Today Packingham has something else to be grateful for, and he can take to social media to express that appreciation because the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.

So writes Amy Howe on SCOTUSBlog, about Packingham v. North Carolina.

How difficult is it to get a federal court to overturn a court-martial conviction

June 17, 2017 | The Law Office of Philip D. Cave

I have discussed before how very difficult it is for an appellant to get a federal court to review and overturn a court-martial conviction.

Here is Randolph v. United States, a federal circuit case reviewing an attempt to get relief via the Court of Federal Claims.

The United States Department of the Navy (Navy) dishonorably discharged Jerome Randolph, the pro se appellant, after a court-martial convicted him for sexual assault and falsifying a statement about that assault. After this discharge, Mr. Randolph repeatedly sought expungement of his court-martial conviction, as well as an award of back pay and an upgraded discharge status, before the Board for Correction of Naval Records (Board). The Board denied him any relief. He ultimately filed suit against the United States (government) in the United States Court of Federal Claims (Claims Court) seeking the same relief he sought from the Board, as well as claiming relief from defamation. The Claims Court concluded that, in light of his court-martial conviction, the Board reasonably refused to award him back pay and upgrade his discharge status. The Claims Court also held that it had no jurisdiction to expunge his court-martial conviction or to proceed with his defamation claim. Even after we broadly construe Mr. Randolph’s arguments on appeal, we affirm.

No, sorry

June 17, 2017 | The Law Office of Philip D. Cave

The CAAF daily journal for 15 June 2017 has this entry: No. 17-0003/AR. U.S. v. Christopher B. Hukill. CCA 20140939. On consideration of Appellee’s petition for reconsideration of this Court’s decision, United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), it is ordered that said petition for reconsideration be, and the same is, hereby denied.

To refresh.

CAAF decided the Army case of United States v. Hukill, 76 M.J. 219, No. 17-0003/AR (slip op.), on Tuesday, May 2, 2017. A short opinion reiterates the rationale of United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) . “[T]he use of evidence of charged conduct as M.R.E. 413 propensity evidence for other charged conduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected.” Slip op. at 6. CAAF reverses the decision of the Army CCA that found Hills inapplicable in judge-alone trials, reverses the appellant’s convictions, and authorizes a rehearing.

Collateral consequences

June 16, 2017 | The Law Office of Philip D. Cave

Collateral Consequences of Criminal Conviction and Restoration of Rights: News, Commentary, and Tools

I am a fan of this website as a resource to find ways to argue on behalf of a client, just as I am a fan of restorative justice.

The CCRC is pleased to announce the launch of its Compilation of Federal Collateral Consequences (CFCC), a searchable online database of the restrictions and disqualifications imposed by federal statutes and regulations because of an individual’s criminal record. Included in the CFCC are laws authorizing or requiring criminal background checks as a condition of accessing specific federal benefits or opportunities.

And now for something completely different

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

Reposting.

https://globalmjreform.blogspot.com/2017/06/and-now-for-something-completely.html

Is there racial disparity in disciplinary actions within the Armed Services

June 8, 2017 | The Law Office of Philip D. Cave

Black sailors more likely than white sailors to be referred to court-martial, report says

Brock Vergakis, The Virginian-Pilot, 7 June 2017. The VP summarizes:

Black sailors were 40 percent more likely than white sailors to be referred to a court-martial over a two-year period examined by an advocacy group that focuses on military justice. . . .

Outrageous prosecuting conduct leads to a reversal at NMCCA

June 5, 2017 | The Law Office of Philip D. Cave

LtCol CT called the possibility that defense counsel might be asking potential witnesses about evidence governed by MIL. R. EVID. 412 and 513 “gross and cruel.” All this caused Capt X (the defense counsel) to audibly sob at counsel table, and she was unable to continue.

Unfortunately, it appears that the words and actions of the trial counsel (prosecutor) caused the defense counsel to make “several decisions about the appellant’s representation that were against her client’s interest, against the advice of the DHQE, and consistent with a concern for her and her husband’s situation.”

Sadly, today we report the decision in United States v. Hale, decided 31 May 2017, by the Navy-Marine Corps Court of Criminal Appeals. Of seven assignments of error raised on appeal, the court reversed on this issue: “III. That the appellant received ineffective assistance from his trial defense counsel, who were laboring under a conflict of interest[.]”