Court-Martial Trial Practice Blog

The tipsy judge? I don’t think so, but possibly an unfortunate meme

May 11, 2017 | The Law Office of Philip D. Cave

The Army Court of Criminal Appeals has decided the case of United States v. Heath, adverse to the appellant. The question to be resolved “is whether SPC XX’s testimony was admissible as a prior consistent statement.”

The case has a fairly sparse discussion but worth reading because of its resolution of an evidentiary issue under the new Mil. R. Evid. 801. The court applied the “Tipsy Coachman Doctrine” to find the military judge arrived at the correct result, even if for the wrong reason. The TCD is explained more fully in United States v. Carista, 76 M.J. 511 (Army Ct. Crim. App. 2017).

The principle is sometimes referred to as the “tipsy coachman” doctrine. See, e.g., Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (“This long-standing principle of appellate law, sometimes referred to as the ‘tipsy coachman’ doctrine, allows an appellate court to affirm a trial court that ‘reaches the right result but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.'”) (citation omitted). Georgia Supreme Court Justice Bleckley quoted Oliver Goldsmith’s 1774 poem, Retaliation, to illustrate the concept.

Not in the military – mostly

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

The state of Maryland is no longer pursuing sexual assault charges against two teenagers who were accused of dragging a 14-year-old girl into the bathroom of Rockville High School and raping her.

The accused students, 18-year-old Henry Sanchez Milian and 17-year-old Jose Montano, are reportedly immigrants who entered the U.S. illegally. That made them people of great interest for foes of illegal immigration: Right-leaning pundits cited the pair as evidence that our schools were threatened by armies of illegal immigrant rapists.

Now the case against the two teens has collapsed. According to The Washington Post:

An unusual summary disposition

May 3, 2017 | The Law Office of Philip D. Cave

Last year we took up the appeal of an Army sergeant. After reading the record of trial, I went to meet with the client at the JRCF, Fort Leavenworth, KS to hear from him. (I make every effort to visit an appellant client in person.) We investigated and interviewed witnesses to develop a case of ineffective assistance of the military defense counsel.

We filed our brief asking for a Dubay hearing to investigate the claims. The Army court ordered a Dubay hearing. A Dubay hearing is uncommon. The Order is here.

We represented the client at the Dubay hearing. The military judge issued his findings of fact and conclusions of law (which are here)

Just over the transom from NACDL

May 1, 2017 | The Law Office of Philip D. Cave

48,000. That is the approximate number of collateral consequences – specific legal restrictions, generalized discriminated and the overall social stigma – returning citizens face. These collateral consequences can adversely impact access to housing, employment, occupational licensing, education, public benefits and voting.

Last month NACDL partnered with Prison Fellowship to celebrate April 2017 as Second Chance Month. NACDL believes that individuals with an arrest or conviction should be afforded a second chance to become productive members of society without the stigma of collateral consequences that limit their potential. The U.S. Senate recently passed S. Res. 129 declaring April 2017 as Second Chance Month.

Currently pending in Congress are two opportunities to ease the collateral consequences of a conviction – the Fair Chance Act (H.R. 1905/S. 842) and the REDEEM Act (H.R. 1906/S. 827). The Fair Chance Act would “ban the box” at the federal level. The REDEEM Act, or the Record Expungement Designed to Enhance Employment Act, would create a mechanism for adults and youth to have their records expunged or sealed.

Retirees for courts-martial anyone?

May 1, 2017 | The Law Office of Philip D. Cave

A gasp went up recently about the likely recall of a retired general officer for court-martial prosecution. (It’s my understanding that he’s not actually been recalled, merely that the SecArmy has determined to exercise jurisdiction. He’ll be brought on “active duty” close to trial.) See, e.g., Oriana Pawlyk, Retired General Accused of Sexual Assault Faces Uncertain Future. Military.com 8 Sept. 2016. There are historical examples, not many, of retirees being recalled for prosecution for conduct while on active duty. I expect to see a modest increase in the recall of retirees for sexual assault allegations.

Here’s another.

In United States v. Reynolds, retired First Sergeant Reynolds was accused of various assaults on some Marines while on active duty. It appears that he’d:

A prosecutor’s duty

April 29, 2017 | The Law Office of Philip D. Cave

A prosecutor’s understanding of their duty.

In exercising their awesome power a prosecutor should “Remember what it means to get it wrong. A criminal goes free. An innocent person is wrongfully punished. The community is less safe. The system has failed in its mission.”

So says a former prosecutor with experience as a defense counsel.

Leiber Code-this day in history

April 26, 2017 | The Law Office of Philip D. Cave

History alerts us to this day–in 1863–as the day General Order #100 was promulgated.

If you have not read it, I highly recommend John Fabian Witt’s Lincoln’s Code.

How to deal with–at all–devastating collateral consequences to combat operations

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

Friend Gene Fidell has posted an interesting piece at JustSecurity blog entitled:

U.S. Military Justice and “Operational Mishaps”: A Primer

Social media problems

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

I’ve put a quick note about the new change to Navy Regulations about posting of nude images — here.

The title: Strengthening Children’s Safety Act closes loopholes

April 14, 2017 | The Law Office of Philip D. Cave

So goes the post of Rep. Ratcliffe (R-TX).

Similarly, the second portion of my bill addresses enhanced sentences for individuals with prior sex offenses. Our child exploitation laws consistently call for higher sentences when a defendant has a prior conviction for federal or state sex offenses. However, these sentencing provisions do not consistently include all similar sex offense convictions that arise under the Uniform Code of Military Justice (UCMJ). My bill amends those federal child exploitation laws to include all similar child sexual exploitation offenses under the UCMJ in the recidivist provisions, as appropriate.