Court-Martial Trial Practice Blog

Nope, apparently not looking for Bergdahl the Army says

October 7, 2016 | The Law Office of Philip D. Cave

Sara Koenig, Was Anyone Killed Looking for Bowe Bergdahl? Some Hard Evidence at Long Last, 6 October 2016.

After nearly a year of waiting, [Serial has] finally received the Army’s internal investigations into the 2009 deaths of six soldiers from Bowe Bergdahl’s unit: MW, CB, KC, MM, DA and MM.

None of these investigations report that any of these men was on a mission to look for Bergdahl. Neither Bergdahl’s name, nor the term DUSTWUN (shorthand for a missing soldier), appears in any of the documents.

Hennis decided–findings and sentence affirmed

October 7, 2016 | The Law Office of Philip D. Cave

The Army Court of Criminal Appeals has decided United States v. Hennis, the military’s latest death penalty appeal.

The opinion is 106 pages long, so it will take a little time read. But what struck me immediately were the statistics.

The case was heard en banc. However, of 12 judges assigned to court and initially eligible to participate, all but four were disqualified for one reason or another.

Odd specified issue at CAAF

September 29, 2016 | The Law Office of Philip D. Cave

In United States v. Lopez, Army Court of Criminal Appeals affirmed, but there is no opinion on the Army court website and I don’t see it in Lexis.

The Court of Appeals for the Armed Forces has specified an issue for review in this case as follows:

No. 16-0487/AR. U.S. v. Mario I. Lopez. CCA 20140943 [2016 CAAF LEXIS 773]. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

Federal Register items of interest for SAPR issues

September 27, 2016 | The Law Office of Philip D. Cave

32 CFR Part 105 Sexual Assault Prevention and Response (SAPR) Program Procedures; Final Rule, of 27 September 2016, 81 FR 66424.

This rule contains amendments to an interim final rule published in the Federal Register on April 11, 2013, which provided guidance and procedures for the SAPR Program. This included establishing the processes and procedures for the Sexual Assault Forensic Examination (SAFE) Kit; establishing the multidisciplinary Case Management Group (CMG), providing guidance on how to handle sexual assault; and establishing minimum program standards, training requirements, and requirements for the DoD Annual Report on Sexual Assault in the Military. This rule adds amendments from the National Defense Authorization Act (NDAA) for Fiscal Year 2016, which contains a provision that preempts state laws that require disclosure of personally identifiable information (PII) of the adult sexual assault victim or alleged perpetrator to local or state law enforcement. This interim final rule implements this provision with respect to care sought at DoD Installations.

81 FR 66185, of 27 September 2016.

United States v. Hills applies to MRE 414 as well

September 26, 2016 | The Law Office of Philip D. Cave

No. 16-0704/AR. U.S. v. Dwight Harris, Jr. CCA 20131045. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER, IN LIGHT OF UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016), THE MILITARY JUDGE ERRED IN APPLYING MRE 414 TO CHARGED CONDUCT TO SHOW APPELLANT’S PROPENSITY TO COMMIT THE CHARGED CONDUCT.

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue.

Sentence Relief-Worth the Read

September 26, 2016 | The Law Office of Philip D. Cave

This article showed that the vast majority of court-martial sentences are affirmed by AFCCA. On the rare occasion when sentence relief was granted, it was usually not based on factual sufficiency or sentence appropriateness. While there has been some fluctuation in how often AFCCA grants sentence relief, it is minimal and to some extent explained by the influence CAAF has on it.

That’s the conclusion of Maj. Kevin Gotfredson and Capt. Micah Smith in their article, Sentence Relief: At the Air Force Court of Criminal Appeals During the Last 10 Years. 43(3) THE REPORTER 21 (2016). Their research was motivated by public discussion of an “epidemic” number of valid convictions being reversed because of “factual sufficiency.”

See more discussion at my website here.

Junk Science Reigns

September 25, 2016 | The Law Office of Philip D. Cave

so starts a post at wrongfulconvictionsblog–Junk Science Reigns ____ So Much for True Science in the Courtroom.

[W]hen the National Academy of Sciences report Forensic Science in the United States; A Path Forward was published

people thought we might see a true effort to address “junk science being used to convict innocent people.”

No surprise here

September 23, 2016 | The Law Office of Philip D. Cave

https://flipboard.com/@flipboard/flip.it%2F-3kqa8-some-criminal-forensics-techniques-may-/f-e42c55c244%2Fuproxx.com

Continuance denied

September 23, 2016 | The Law Office of Philip D. Cave

Please don’t do this.

[T]he defense counsels did not respect the judge’s ruling.

[I]n an astounding show of contempt, [they] tried to force the judge to reverse himself by their unilateral withdrawal from the proceedings, on the apparent pretext that they were not prepared.

Check the post-trial victim impact statements

September 18, 2016 | The Law Office of Philip D. Cave

The recent Air Force Court of Criminal Appeals case illustrates why defense counsel, and staff judge advocates, should exercise care with victim impact statements submitted post trial.

In United States v. Goss, the court reminds us that:

Article 60, UCMJ, was amended to include a new subsection “(d)” that authorized the submission of victim impact statements. See National Defense Authorization Act (NDAA) for Fiscal Year 2014, Pub. L. No. 113-66, § 1706, 127 Stat. 672, 960-61 (2013). However, the amended Article 60, UCMJ, does not address what may be included in a victim impact statement: